PART6GENERALCONDITIONS.pdf

Part 6-1

PART 6 GENERAL CONDITIONS

MASSACHUSETTS WATER RESOURCES AUTHORITY

GENERAL CONDITIONS OF THE CONTRACT

TABLE OF CONTENTS

Article Title Page

ARTICLE 1 - DEFINITIONS; CONTRACT DOCUMENTS

ARTICLE 2 - ADMINISTRATION OF THE CONTRACT

ARTICLE 3 - CONTRACTOR'S RESPONSIBILITIES

ARTICLE 4 - INDEMNIFICATION

ARTICLE 5 - INSPECTION AND TESTING

ARTICLE 6 - TIME

ARTICLE 7 - PAYMENT

ARTICLE 8 - CLAIMS

ARTICLE 9 - SAFETY AND PROTECTION

ARTICLE 10 - INSURANCE

ARTICLE 11 - TERMINATION OF THE CONTRACT

ARTICLE 12 - AUTHORITY'S RIGHT TO STOP THE WORK AND TO CARRY OUT

THE WORK

ARTICLE 13 - NON-DISCRIMINATION AND AFFIRMATIVE ACTION

ARTICLE 14 - Omitted ........................................... N/A

ARTICLE 15 - MISCELLANEOUS PROVISIONS

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ARTICLE 1 - DEFINITIONS; CONTRACT DOCUMENTS

1.1 DEFINITIONS

Wherever used in the Contract Documents, the following terms shall have the meanings indicated, which shall be applicable to both the singular and plural thereof:

1.1.1 Addenda/Addendum - The written documents and/or drawings issued by the Authority, prior to the time set for receipt of bids, which supplement, modify, correct, explain or interpret the Contract Documents.

1.1.2 Awarding Authority, Authority, MWRA, Owner - The Massachusetts Water Resources Authority. The Authority may act directly or through its properly authorized representatives.

1.1.3 The term "approved" or "approval" means written approval.

1.1.4 Change Order - A written instrument which when duly executed by the Authority amends the Contract Documents to provide for additions to, deletions from, or revisions in the Work, and/or an adjustment to Contract Price and/or Contract Time.

1.1.5 Contract - The written agreement between the Authority and the Contractor covering the Work to be performed.

1.1.6 Contract Documents - The Advertisement for Bids, Instructions to Bidders, Special Instructions to Bidders, Agreement for Non-Professional Services, these General Conditions, Special Conditions, Supplementary Conditions, Specifications/Scope of Services, Attachments, Addenda, Notice of Award, and Notice to Proceed.

1.1.7 Contract Price - The total monies payable to the Contractor under the terms and conditions of the Contract Documents.

1.1.8 Contract Time - The time period specified in the Agreement for Non-Professional Services for the completion of the Work, including adjustments thereto approved by the Authority as provided in the Contract Documents.

1.1.9 Contractor - The person, firm or corporation with whom the Authority has executed the Agreement for Non-Professional Services.

1.1.10 The term "day" as used in the Contract Documents shall mean calendar day. The terms "working day" and "business day" shall mean any calendar day except Saturday, Sunday, and legal holidays.

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1.1.11 Engineer - The person holding the position or acting in the capacity of Chief Engineer or Director of the respective Division of the Authority with respect to the Work covered by this Contract, acting directly or through properly authorized agents, such agents acting within the scope of the particular duties entrusted to them.

1.1.12 Notice of Award - Written notice from the Authority to the successful bidder of the acceptance of the bidder's bid.

1.1.13 Notice to Proceed - A written communication issued by the Authority to the Contractor authorizing him to proceed with the Work and establishing the date of commencement of the Work.

1.1.14 Project Manager - The person holding the position or acting in the capacity of manager with respect to the Work of this Contract.

1.1.15 Specifications - That portion of the Contract Documents consisting of written descriptions and requirements of a technical nature of materials, equipment, methods and systems, standards and workmanship. This section may also be referred to as Scope of Services.

1.1.16 Subcontractor - An individual, firm or corporation having a contract with the Contractor or with any other Subcontractor, regardless of tier, for the performance of a part of the Work at the site.

1.1.17 Supplier - An individual, firm or corporation, including vendors and manufacturers, who supplies materials or equipment for the Work, but who does not perform labor at the site.

1.1.18 Work - All labor, materials and equipment necessary to perform the services required by the Contract Documents.

1.1.19 Unless the Contract Documents specifically provide otherwise or the context clearly requires a different meaning, the terms "directed", "required", "permitted", "ordered", "designated", "prescribed", and words of like import shall imply the direction, requirements, permission, designation or order of the Authority; and "approved", "acceptable", "satisfactory" and words of like import shall mean approved by, or acceptable or satisfactory to the Authority; and "necessary", "reasonable", "proper", "correct", and words of like import shall mean necessary, reasonable, proper or correct in the judgment of the Authority.

1.2 INTERPRETATION OF CONTRACT DOCUMENTS

1.2.1 This Contract is subject to all laws, regulations, codes, rules and orders of the United States of America, the Commonwealth of Massachusetts and other public authorities, and all amendments

Part 6-4 thereto, and to all contracts and other agreements between the Authority and any such governmental or public authorities, and where any requirements contained herein do not conform to or are inconsistent with such laws, regulations, codes, rules, orders or agreements, such laws, regulations, codes, rules, orders or agreements shall have precedence over any matters set forth herein. Statutes, regulations, and portions and summaries thereof which are set forth or referred to herein shall be construed to include all amendments thereto effective as of the date of opening of bids. The Authority makes no representation as to and assumes no responsibility for the correctness or completeness of such statutory matters referred to or set forth herein.

1.2.2 By submitting a bid the Contractor represents that it has examined and understands all of the Contract Documents and has visited the site, examined and familiarized himself with the local conditions under which the Work is to be performed, including any work in progress under previously awarded contracts, and correlated its observations with the requirements of the Contract Documents.

1.2.3 In the event of conflicts, inconsistencies or discrepancies among the Contract Documents or within any of the Contract Documents, to the extent applicable the better quality or greater quantity of work shall be provided without change in the Contract Price. In the event of such conflicts, inconsistencies or discrepancies which do not relate to the quality or quantity of work, the Contractor shall request instructions or interpretations from the Authority as provided in the Contract Documents, and shall be governed by the Authority's directions.

1.2.4 All indications or notations which apply to one of a number of similar situations, materials or processes shall be deemed to apply to all such situations, materials or processes wherever they appear in the Work, except where a contrary result is clearly indicated by the Contract Documents.

1.2.5 Where codes, standards, requirements or publications of public or private bodies are referred to in the Contract Documents, references shall be understood to be to the latest revision in effect on the date of the opening of bids, except where otherwise indicated.

Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings.

1.2.6 The Contract Documents furnished to the Contractor, and all copies thereof and the copyright therein, are the property of the Authority and are to be returned or satisfactorily accounted for to the Authority, if requested, upon final completion of the Work.

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1.2.7 Without invalidating the Contract, the Authority may order changes in the Work consisting of additions, deletions, and revisions, the Contract Price or Contract Time being adjusted accordingly, if necessary. Such changes may only be authorized in writing by Change Order.

1.2.7.1 A Change Order duly executed by the Authority and the Contractor provides for an all-inclusive settlement for all changes, costs, and delays. The Contractor's signature on a Change Order represents a waiver of any and all rights to file a claim on account of that instrument or change.

1.2.7.2 A Change Order duly executed by the Authority, but not executed by the Contractor, shall become final and binding on the Contractor, unless it delivers written notice of a claim to the Authority in accordance with Article 8.1.1 hereof.

ARTICLE 2 - ADMINISTRATION OF THE CONTRACT

2.1 AUTHORITY RESPONSIBILITIES

2.1.1 The Authority will provide contract administration as provided in the Contract Documents. The Authority may act directly or through its properly authorized agents, such agents acting within the scope of the particular duties entrusted to them.

2.1.2 The Project Manager will represent and act for the Authority as provided in the Contract Documents. The Project Manager will have Authority to act on behalf of the Authority only to the extent provided in the Contract Documents.

2.1.3 The Authority will not be responsible for the supervision, means, methods, techniques, sequences, procedures, or safety of Contractor's operations.

2.1.4 The Authority and its agents and employees shall at all times have access to the Work and areas occupied by the Contractor. The Contractor shall provide safe and proper facilities for such access and for observation and inspection of the Work.

2.1.5 Based on the Authority's observations and its evaluations of the Contractor's requests for payment, the Authority will review and verify the amounts owing to the Contractor and will make payment in such amounts, as provided in Article 7 hereof.

2.1.6 The Authority shall decide all questions which may arise as to the performance, quality and acceptability of the Work. The Authority will interpret the requirements of the Contract Documents and will decide claims, disputes and other matters in question relating to

Part 6-6 performance thereunder by the Contractor, subject to the provisions of the Contract Documents.

2.1.7 The Authority will render decisions on interpretation of the Specifications, approval of equipment, material or any other approval, or progress of the Work promptly.

2.1.8 All Work shall be subject to inspection by the Authority. The Authority will have Authority to reject work which does not conform to the Contract Documents. The Authority shall be furnished with such information and assistance, including, without limitation, labor, tools, equipment and water or land transportation, by and at the expense of the Contractor as is required to make complete and detailed inspections. Failure by the Authority to so inspect shall not relieve the Contractor from performing any and all Work in accordance with the Contract Documents.

ARTICLE 3 - CONTRACTOR'S RESPONSIBILITIES

3.1 DUTY TO REVIEW CONTRACT DOCUMENTS AND SITE CONDITIONS

3.1.1 Before starting the Work, and at frequent intervals during the progress thereof, the Contractor shall carefully study and compare the Contract Documents and the site conditions each to the other and shall at once report to the Authority all errors, inconsistencies and omissions it discovers. Any necessary change shall be made by Change Order as provided in Article 1.2.7. If the Contractor proceeds with the Work without such notice to the Authority, having discovered such errors, inconsistencies or omissions, or if by reasonable study of the Contract Documents it could have discovered such, the Contractor shall bear all costs arising therefrom and shall have no claim for increases in the Contract Price for extra work made necessary thereby.

3.1.2 The Contractor shall give the Authority timely notice of any additional specifications or instructions required to define the Work in greater detail or otherwise required to permit the proper progress of the Work.

3.1.3 The Contractor shall not proceed with any work not clearly and consistently defined in detail in the Contract Documents, but shall request additional instructions from the Authority as provided in Article 3.1.2. If the Contractor proceeds with any such work without obtaining further instruction, it shall correct at its own expense work incorrectly done.

3.2 SUPERVISION BY CONTRACTOR

3.2.1 The Contractor shall supervise and direct the Work competently and efficiently, using its best skill and attention. The Contractor shall be solely responsible for all means, methods, techniques, Part 6-7 sequences and procedures, for coordinating all portions of the Work and for ensuring that the Work complies with the Contract Documents.

3.2.2 The Contractor shall be responsible for the acts and omissions of its employees, Subcontractors, and their agents and employees, and other persons performing any of the Work.

3.2.3 The Contractor shall not be relieved from its obligations to perform the Work in accordance with the Contract Documents either by the activities or duties of the Authority or by inspections, tests or approvals required or performed by persons other than the Contractor.

3.2.4 Where the Contract Documents refer to particular means, methods, techniques, sequences or procedures or indicate or imply that such are to be used in the Work, such mention is intended only to indicate that the operations of the Contractor shall be such as to produce at least the quality of work implied by the operations described, but the actual determination of whether or not the described operations may be safely and suitably employed on the Work shall be the responsibility of the Contractor who shall notify the Authority in writing of the actual means, methods, techniques, sequence or procedures which will be employed on the Work, if these differ from those mentioned in the Contract Documents. All loss, damage or liability, or cost of correcting defective work arising from the employment of any means, methods, techniques, sequences or procedures shall be borne by the Contractor, notwithstanding that such means, methods, techniques, sequences or procedures are referred to, indicated or implied by the Contract Documents, unless the Contractor has given timely notice to the Authority in writing that such means, methods, techniques, sequences or procedures are not safe or suitable, and the Contractor has then been instructed in writing to proceed at the Authority's risk.

3.2.5 Dependent Work: Wherever portions of the Work of the

Contractor are dependent upon work to be performed by the Authority or other contractors, the Contractor shall coordinate such Work with that of the Authority.

3.3 LABOR AND MATERIALS

3.3.1 The Contractor shall provide competent, suitably qualified personnel to perform all activities as required by the Contract Documents. Unless otherwise specified in the Contract Documents, the Contractor shall furnish and assume full responsibility for all materials, equipment, labor, transportation, equipment and machinery, tools and appliances for the proper furnishing, performance, testing and completion of the Work.

3.3.2 The Contractor shall at all times enforce strict discipline and good order among its employees and the employees of its Subcontractors

Part 6-8 and shall not employ or permit to be employed on the Work any person who is not properly skilled in the work to be performed by him or who is otherwise unfit. Whenever the Authority shall notify the Contractor in writing that any person employed on the Work is, in the Authority's opinion, incompetent, disorderly or otherwise unsatisfactory, such person shall be discharged and shall not again be employed on the Work except with the consent of the Authority.

3.3.3 The Contractor shall furnish labor that can work in harmony with all other elements of labor employed or to be employed in the Work.

3.4 PERMITS AND FEES; COMPLIANCE WITH LAW

3.4.1 The Contractor shall perform all Work in accordance with all applicable laws, statutes, regulations, ordinances, codes, standards, permits or other rules and requirements established by any governmental agency having any jurisdiction or control over any of the Work.

3.4.2 The Contractor shall secure and, except as specifically provided otherwise in the Contract Documents, pay for all permits, approvals and governmental fees or charges, licenses, inspections and certificates of inspection necessary for the proper execution and completion of the Work. The Contractor shall promptly deliver to the Authority copies of all such permits, approvals, licenses and certificates, including, where applicable, satisfactory evidence that disposal of all waste material has been performed in full compliance with all applicable laws, rules, regulations and ordinances.

3.4.3 The Contractor shall give all notices required by and shall otherwise comply with all laws, ordinances, rules, regulations, codes and lawful orders of any public Authority bearing on the performance of the Work including, without limitation, applicable provisions of the State Building Code and applicable federal, state and local environmental laws.

3.4.4 If the Contractor observes that any of the Contract Documents are at variance with applicable laws, ordinances, rules, building codes or regulations in any respect, it shall give the Authority prompt written notice thereof, and any necessary changes shall be authorized in accordance with Article 1.2.7. If the Contractor performs any portion of the Work knowing or having reason to know that it is contrary to such laws, ordinances, rules, codes or regulations, and without such notice to the Authority, the Contractor shall assume full responsibility therefor and shall bear all costs of correction thereof and other costs, including any costs or damages sustained by the Authority, attributable thereto.

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3.5 CONFIDENTIALITY - LIMITED USE OF DOCUMENTS AND EMPLOYEE

SECURITY ASSESS MENTS

3.5.1 Certain information contained in these Contract Documents is deemed by the Authority to be sensitive relative to the Authority's Water and Wastewater operating systems. The Contractor agrees that the Contract Documents are provided solely for use by the Contractor and its employees, consultants, Suppliers and Subcontractors in the performance of Work under these Contract Documents. The information contained herein, and such other information, drawings, submittals and the like, developed by the Contractor, or by those employed by the Contractor in the performance of the Work, or such other information subsequently provided to the Contractor by the Authority relating to the Work, is, to the maximum extent permitted by law, confidential and shall be treated and protected accordingly. Contractor shall disseminate this information only to those entities which have a "need to know", solely in connection with the performance of Work under this Contract, and will make the minimum number of copies available to others as is necessary to perform the Work.

3.5.2 The Contractor shall inform its employees, consultants, Suppliers and Subcontractors of the sensitive and confidential nature of the information contained herein and i) shall obtain from them their verbal acknowledgement that they understand the sensitive and confidential nature of such information; and ii) that they agree to keep such information confidential. In the event that any employee, consultant, Supplier or Subcontractor refuses to provide such verbal acknowledgement, or fails to keep such information confidential, such person shall be denied access to the site and shall not be permitted to perform any Work under the Contract Documents, and the Contractor shall replace such employee, consultant, Supplier or Subcontractor at no additional cost to the Authority.

3.5.3 Employees of the Contractor who will perform work on this contract shall be subject to security screening requirements. The Contractor shall be solely responsible for screening employees and shall permit only persons who are legally employable in the United States to perform work on this contract. The Contractor shall not assign or permit any employee who is or may reasonably be deemed a threat to the safety or integrity of the Authority’s water or wastewater systems to work in any way on the Contract, or to have access to any confidential Contract information.

3.5.3.1 The Contractor shall verify the employee’s identity by conducting a Social Security number trace and verify work authorization through Systematic Alien Verification of Entitlements (SAVE) administered by the US Citizenship and Immigration Services (USCIS) for newly hired employees who will work on this contract. Within sixty (60) days after Notice to

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Proceed, the Contractor shall submit a copy of its Memorandum of Understanding with USCIS and Social Security Administration.

3.5.3.2 Pursuant to Executive Order No. 481, the Contractor

shall certify:

3.5.3.2.1 that it will not knowingly use undocumented workers in connection with the performance of the contract;

3.5.3.2.2 that, pursuant to federal requirements, it shall verify the immigration status of all workers assigned to the contract without engaging in unlawful discrimination; and

3.5.3.2.3 that it shall not knowingly or recklessly alter, falsify, or accept altered or falsified documents from any such worker.

3.5.4 The Contractor must complete a background check on its

employees assigned to this Contract within the 6 month period prior to beginning on-site work. The purpose of the background check is to: (a) confirm the identity of the employee, including any other names the employee may have used; and (b) determine if the employee has engaged in any behavior that may reasonably lead one to conclude that the employee is, or may be, a threat to the integrity or safe operation of the Authority’s water or wastewater systems or to the safe supply of drinking water to the Authority’s communities.

3.5.4.1 The background check shall include:

3.5.4.1.1 Verification of Social Security number;

3.5.4.1.2 Verification of US citizenship or right to work

legally in the United States;

3.5.4.1.3 Verification of professional licenses and

certifications; and

3.5.4.1.4 Verification of valid motor vehicle operator’s

license, if required for job duties and responsibilities.

3.5.4.2 The Contractor shall maintain records of background

checks and make them available for Authority review upon demand.

3.5.4.3 The Authority may designate certain Contractor employees who will be subject to higher levels of security.

3.5.5 The Authority shall have the right to examine and audit all documents and records pertinent to compliance with this Article.

Failure to comply with this Article may be regarded as a material breach, subjecting the Contractor to sanctions, including but not limited to monetary penalties, withholding of payments, suspension or termination of the contract. If the Contract fails to comply with this Article, the Authority may, without in any way limiting any other right it may have at law or under the Contract Documents, terminate this Contract for cause immediately upon written notice to the

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Contractor. In any event, the Contractor shall be liable for any and all damages sustained by the Authority arising out of, or in any way connected to, the Contractor's failure to comply with the provisions of this Article.

3.5.6 The Contractor shall include the provisions of this Article in any subcontract, consultant agreement or purchase order placed for services, labor, or labor and materials for Work to be performed hereunder.

3.5.7 The provisions of this Article shall survive any termination or expiration of this Contract.

ARTICLE 4 - INDEMNIFICATION

4.1 INDEMNIFICATION

4.1.1 The Contractor agrees to defend, indemnify and hold the Authority, its officers, members, representatives, agents and employees, harmless from and against any and all costs, losses, expenses, liabilities, damages or claims for damages, including reasonable attorney's fees and expenses, arising out of the performance or non-performance of the Work or from any act, error, omission or negligence of the Contractor, its agents, employees, or assigns, regardless of whether or not it is caused in part by a party indemnified hereunder, or on account of any non-compliance with applicable laws, rules or regulations. The foregoing provisions shall not be deemed to be released, waived, or modified in any respect by reason of any surety or insurance provided by the Contractor.

4.1.2 The Contractor shall give prompt notice to the Authority in the event of any such claim, loss or damage. Without limitation of any of the provisions of this Contract, if the Contractor's agreement to indemnify, defend and save harmless the Authority and the other indemnitees referred to above as provided herein against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of the Authority or such other indemnitees, respectively, shall to any extent be or be determined to be void or unenforceable, it is the intention of the parties that such circumstance shall not otherwise affect the validity or enforceability of the Contractor's agreement to indemnify, defend and save harmless the Authority and such other indemnitees, as provided herein, and in the case of any such suits, claims, damages, losses or expenses caused in part by the default, negligence or act or omission of the Contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, and in part by the Authority or any other such indemnitees, the Contractor shall be and remain fully liable on its agreements and obligations under this article to the full extent permitted by law.

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4.1.3 The Contractor's indemnification obligation under this article shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under worker's compensation acts, disability benefit acts or other employee benefit acts.

ARTICLE 5 - INSPECTION AND TESTING

5.1 INSPECTION AND TESTING

5.1.1 If the Contract Documents, laws, ordinances, rules, regulations or orders of, or conditions imposed by, any public Authority having jurisdiction require any portion of the Work to be inspected, tested or approved, the Contractor shall give notice to the Authority, and, if applicable, public authorities requiring such inspection, testing or approval, at least 24 hours prior to the commencement of Work or operations requiring such inspection, testing or approval so the Authority or such public authorities may perform or observe such inspection, testing or approval. Except in the event of an unforeseen emergency, work or operations requiring such inspection, testing or approval shall not be performed at times other than during the normal working day without the prior approval of the Authority. The Contractor will provide such assistance, including, without limitation, labor, tools and equipment, as the Authority or such other public authorities may request in connection with such inspection, testing or approval. The Authority may at its election retain the services of testing laboratories, agencies, or consultants, to perform such tests or inspections. The Contractor shall make no claim for delay or extension of the Contract Time arising directly or indirectly out of its failure to give timely notice so as to permit performance or observance of inspections, testing or approvals. Without limiting any other provisions hereof, defective work shall be made good and unsuitable materials may be rejected, notwithstanding that such work and materials have been previously inspected by the Authority and accepted or estimated for payment or paid for.

5.2 INSPECTION CERTIFICATES AND PERMITS

5.2.1 The Contractor shall obtain and deliver promptly to the Authority at such times as may be required by the Authority any certificates of inspection, testing or approval, including, where required by law, building code certificates of occupancy, certificates of compliance required under Title V of the State Environmental Code, and operating permits for any mechanical apparatus, which may be required by law to permit full use and occupancy of the Work by the Authority.

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ARTICLE 6 - TIME

6.1 PROGRESS AND COMPLETION

6.1.1 All time limits stated in the Contract Documents are of the essence.

6.1.2 The Contractor shall begin the Work on the date specified in the Notice to Proceed.

6.1.3 Nothing contained herein shall limit the Authority's right to damages for delays by the Contractor or any other rights or remedies of the Authority under the Contract Documents or by law.

ARTICLE 7 - PAYMENT

7.1 CONTRACT PRICE

7.1.1 The Contract Price is stated in the Agreement for

Non-Professional Services and, including Change Orders thereto authorized in accordance with the Contract Documents, is the total amount payable by the Authority to the Contractor for the performance of the Work.

7.2 UNIT RATES AND PRICES

7.2.1 Where unit prices are contained in the Bid Price Schedule of the Agreement for Non-Professional Services, the quantities specified for each bid item are estimates only. The actual quantities of each bid item required to be performed may vary.

7.2.2 The unit price provided for each bid item shall be the basis, during the entire Contract Time, for additions to or deletions from the Contract Price for that bid item, so long as the number of units required to be performed remains within fifteen percent (15%) of the estimated quantity specified for that bid item. Thereafter, the unit price will be subject to review and determination of applicability by the Authority.

7.2.3 In Contracts containing unit prices, payment shall be based on the actual number of units of each item completed.

7.2.4 The Unit Rate per building per month is the total agreed to amount of compensation that the Contractor will be paid upon completion of the Work described in the Contract Documents for each building. Upon contract execution the "Unit Rates", as established through negotiation and/or acceptance by the Authority of the selected consultant's proposed Unit Rates, will not fluctuate with the selected contractor's actual cost experience, except as otherwise provided

Part 6-14 herein. On this basis, the selected contractor agrees to complete all Work for the final Unit Rates.

7.3 INVOICES

7.3.1 The Contractor shall submit monthly invoices for services rendered in such detail and with supporting data as the Authority may reasonably require to show the computational basis for all charges.

7.3.2 The Authority will review the Contractor's invoice within 30 days of receipt and will pay the amount approved for services, less a retention based on the Authority’s estimate of the fair value of its claims against the Contractor, within 30 calendar days of the date of approval of the Contractor’s invoice. Prior to receiving final payment, the Contractor shall execute and deliver a release in a form acceptable to the Authority, of all claims against the Authority arising under or by virtue or this agreement.

ARTICLE 8 - CLAIMS

8.1 PROCEDURE

8.1.1 In order for a claim to be valid, the Contractor shall deliver written notice of claim, together with all supporting data and documentation, to the Authority promptly, but in no event later than thirty (30) days, after the occurrence of the event giving rise to the claim. The Contractor is solely responsible for substantiation of any claim presented.

8.1.2 Within sixty (60) days after the notice of claim is received, the Engineer will decide the claim or notify the Contractor of the date by which the decision will be made. The Engineers' decision shall be final and binding on the Contractor unless the Contractor notifies the Authority within twenty-one (21) days after receipt of the Engineer's decision of its objection to such decision and commences an action in a court of competent jurisdiction within the time permitted by law. Failure to give notice of objection within said twenty-one (21) daytime period shall be conclusively deemed to be a waiver of objection or further claim of the instant matter.

8.1.3 Pending final resolution of any claim, including litigation, the Contractor shall proceed diligently with performance of the Work, and comply with any decision of the Authority.

8.2 FALSE CLAIMS

8.2.1 The attention of the Contractor and all Subcontractors is drawn to Section 9B of Chapter 93 of the Massachusetts General Laws, which provides:

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Any person who shall make or cause to be made, or present or cause to be presented, for payment or approval, to or by any employee, department, agency, or public instrumentality of the commonwealth, or any political subdivision thereof, any claim upon or against any department, agency, public instrumentality of the commonwealth, or any political subdivision thereof, knowing such claim to be false, fictitious or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, shall forfeit and pay to the commonwealth, or any political subdivision thereof, the sum of two thousand dollars and, in addition, double the amount of damages which the commonwealth or political sub-division thereof may have sustained by reason of the doing or committing of such act, together with the costs of the action. Any such action may be brought in the superior court of the county in which the person resides or has his principal place of business, or in the superior court department of the trial court for Suffolk county.

ARTICLE 9 - SAFETY AND PROTECTION

9.1 SAFETY PRECAUTIONS AND PROGRAMS

9.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work, including, but not limited to, compliance by the Contractor and all Subcontractors with all safety precautions and programs required by any insurance carrier providing insurance coverage for the Authority or the Contractor.

9.2 SAFETY OF PERSONS AND PROPERTY

9.2.1 The Contractor shall give all notices and comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public Authority bearing on the safety of persons or property or their protection from damage, injury or loss.

9.2.2 The Contractor shall observe, provide and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety and protection, including, but not limited to, posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities and other improvements.

9.2.3 If at any time the Authority determines that the methods, procedures or programs employed by the Contractor to ensure the safety of persons or property as provided under this article or otherwise employed under the provisions of the Contract Documents are unsafe or

Part 6-16 inadequate, the Authority may, but shall have no duty or obligation to, order the Contractor to increase or improve the safety, efficiency or adequacy thereof, and the Contractor shall promptly comply with such order without claim for increase in the Contract Price or the Contract Time; provided that the failure of the Authority to make such determinations or orders shall not relieve the Contractor from its obligations to ensure the safe conduct and satisfactory quality of the Work and the rate of progress required by the Contract Documents, and the Contractor shall be solely responsible for the safety, efficiency and adequacy of all such methods, procedures and programs.

9.3 EMERGENCIES

9.3.1 In any emergency affecting the safety of persons or property, the Contractor shall act, at its discretion, to prevent threatened damage, injury or loss and shall, as promptly as conditions permit, notify insurance carriers and the Authority of the nature of the emergency and circumstances related thereto. Immediately thereafter, Contractor shall prepare a written report setting forth in detail the action taken and describing in detail all circumstances and conditions which are related to such action.

ARTICLE 10 - INSURANCE

10.1 CONTRACTOR'S LIABILITY INSURANCE

10.1.1 The Contractor shall purchase and maintain insurance policies in the coverages and amounts specified in the Supplementary Conditions.

10.1.2 The Authority shall have the right to require that the limits of liability set forth in the Supplementary Conditions be raised if in its judgment economic conditions warrant. If additional costs are incurred because of raised limits, the additional cost shall be added to the Contract Price.

10.1.3 Insurance certificates acceptable to the Authority evidencing the above coverages are to be furnished to the Authority and other specified additional insureds by the Contractor's insurance company within five (5) days after the Notice of Award. Such certificates and all insurance policies required by this article shall contain provisions requiring at least 30 days' prior written notice to the Authority of any cancellations of or restrictions in the policies.

Certificates shall indicate effective dates and date of expiration of policies.

10.1.4 All insurance policies provided pursuant to the foregoing provisions shall be written by companies licensed to do business in the Commonwealth of Massachusetts and shall be in form satisfactory to the Authority. Upon notice, the Contractor shall name the Authority

Part 6-17 as an additional insured. All such policies shall contain provisions or endorsements necessary to assure coverage of claims by one insured against another. All required insurance policies are to be endorsed to state that the Contractor's policies shall be primary to all other insurance available to the Authority and other specified additional insureds for liability arising out of or resulting from the Contractor's operations under the Contract, whether such operations be by Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable.

10.1.5 The purchase of insurance to satisfy the above requirements, or the furnishing of certificates evidencing same, shall not be a satisfaction of Contractor's liability or in any way modify or limit Contractor's indemnification of the Authority.

10.1.6 If (a) the Contractor's agreement herein to insure or to name as an insured the Authority or the other specified additional insureds with respect to contractual liability assumed by the Contractor under the terms of the Contract Documents or otherwise, or (b) any contract of insurance between the Contractor or any Subcontractors and its or their insurance company, shall to any extent be or be determined to be void or unenforceable, it is the intention of the parties that such circumstance shall not otherwise affect the validity or enforceability of the Contractor's agreements and obligations under the Contract Documents nor the validity or enforceability of such contract of insurance, each of which shall be enforced to the fullest extent permitted by law.

ARTICLE 11 - TERMINATION OF THE CONTRACT

11.1 TERMINATION

11.1.1 The Authority may terminate the Contract, with or without cause, upon written notice to the Contractor.

11.1.2 Any termination of the Contract shall not affect or impair the right of the Authority to recover damages occasioned by fault or default of the Contractor.

ARTICLE 12 - AUTHORITY'S RIGHT TO STOP THE WORK

AND TO CARRY OUT THE WORK

12.1 AUTHORITY'S RIGHT TO STOP THE WORK

12.1.1 If the Contractor fails, in the sole judgment of the

Authority, to commence to correct and diligently pursue the correction of defective work or fails to carry out the Work in accordance with the Contract Documents, the Authority may, by a written order of the Authority or by an agent specifically so empowered by the Authority

Part 6-18 without prejudice to any other remedy the Authority may have, order the Contractor to stop the Work or any portion thereof, and the Contractor shall not thereafter incur any further cost or expense therefor without the Authority's prior written approval, until the cause for such order has been eliminated; however, this right of the Authority to stop the Work shall not give rise to any duty on the part of the Authority to exercise this right for the benefit of the Contractor or any other person or entity.

12.2 AUTHORITY'S RIGHT TO CARRY OUT THE WORK

12.2.1 If the Contractor fails to perform the Work diligently and in a timely manner or defaults or neglects to carry out the Work in accordance with the Contract Documents, the Authority may, without prejudice to any other remedy it may have, perform the Work or correct such deficiencies, provided, however, that the Authority shall not take any action to perform the Work or to correct such deficiencies, except in the event of an emergency, unless the Contractor shall have failed, within three business days after receipt of written notice from the Authority of such failure, default or neglect, to commence corrective action to completion. If the Authority undertakes to correct such deficiencies, an appropriate Change Order shall be issued deducting from the payments then or thereafter due the Contractor the cost of correcting such deficiencies, and other additional services made necessary by such default, neglect or failure and the Contract Price shall be likewise reduced. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Authority within thirty

(30) days of receipt of an invoice therefor.

ARTICLE 13 - NON-DISCRIMINATION AND AFFIRMATIVE ACTION

13.1 CONTRACTOR’S RESPONSIBILITIES

13.1.1 In connection with the performance of Work, the Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, creed, national origin, ancestry, age, sex or handicap. The Contractor shall post in conspicuous places, available for employees and applicants for employment, notice to be provided by the Massachusetts Commission Against Discrimination (the "Commission"), setting forth the provisions of the Fair Employment Practices Law of the Commonwealth.

The Contractor shall give written notice of its commitments under this article to any labor union, association or brotherhood with which it has a collective bargaining or other agreement, and to minority and women contractors, and to minority contractor associations.

13.1.2 In connection with the performance of Work, the Contractor shall not discriminate in its relationship with Subcontractors or Suppliers on the basis of race, color, religion, creed, national

Part 6-19 origin, ancestry, age, sex or handicap. In all the Contractor's solicitations for bids or proposals it shall notify in writing each potential Subcontractor or Supplier of the Contractor's obligations under this article, and it shall be a term of each contract with a Subcontractor or Supplier in connection with performance of Work that the Subcontractor or Supplier shall be bound to non-discrimination and equal opportunity requirements equivalent to the obligations of the Contractor hereunder.

13.1.3 In connection with the performance of Work, the Contractor shall undertake programs of affirmative action with the objectives of

(1) eliminating past and present effects of discrimination in employ-ment because of race, color, religion, creed, national origin, ances-try, age, sex or handicap; (b) promoting the full realization of equal employment opportunity for minorities and women; and (c) promoting business opportunities in the Commonwealth for minority and women contractors.

13.1.4 The Contractor shall comply with all applicable laws and regulations pertaining to non-discrimination, equal opportunity and affirmative action, including, without limitation, executive orders and rules and regulations of federal and state agencies of competent jurisdiction. The Contractor shall be subject, at the request of the Commission, to the Commonwealth's Supplemental Equal Opportunity, Anti-discrimination and Affirmative Action Program, appropriately adapted by the Commission.

13.1.5 The Contractor's non-compliance with any provision of this article shall constitute a material breach of the Contract, for which the Authority may, in its discretion, upon failure to cure said breach within thirty days after written notice thereof, terminate the Contract upon ten days written notice. The Contractor shall indemnify and hold harmless the Authority from any claims and demands of third persons resulting from the Contractor's noncompliance with any of the provisions of this article and in case of termination or cancellation of the Contract, the Contractor shall indemnify the Authority during the remainder of the original term against any loss and damage suffered by reason of such termination.

ARTICLE 14 – Omitted

ARTICLE 15 - MISCELLANEOUS PROVISIONS

15.1 CONTRACT DOCUMENTS

15.1.1 The Contract Documents form and comprise the entire agreement between the parties hereto, and supersede all prior negotiations, representations and agreements, whether written or oral.

Part 6-20

15.1.2 The Contract shall be governed by the laws of the Commonwealth of Massachusetts. The Contractor, all Subcontractors, and other persons performing any part of the Work agree that each of them shall be subject to the jurisdiction of the courts of the Commonwealth of Massachusetts with respect to any actions or suits at law or in equity arising out of or related to the bidding, award or performance of the Contract, and that any such actions or suits commenced by any of such parties shall be commenced in the courts or appropriate administrative tribunals of the Commonwealth of Massachusetts and not otherwise.

15.2 SUCCESSORS AND ASSIGNS

15.2.1 The Authority and the Contractor each binds itself, its partners, successors, assigns and legal representatives to the other party hereto and to the partners, successors, assigns and legal repre-sentatives of such other party in respect to all covenants, agreements and obligations contained in the Contract Documents.

15.2.2 The Contractor shall not assign, sublet or subcontract the Work, other than subcontracting portions of the Work as expressly permitted by and in accordance with the Contract Documents, without the previous written consent of the Authority, which consent may be withheld by the Authority in its sole discretion, nor shall the Contractor assign any moneys due or to become due to him hereunder, without such previous written consent of the Authority.

15.3 NOTICES

15.3.1 Whenever written notice is required or permitted pursuant to the Contract Documents, the same shall be deemed to have been properly given if given in writing and delivered by hand in person or by registered or certified mail or express delivery service, return receipt requested, in the case of notices to the Authority to:

Massachusetts Water Resources Authority Charlestown Navy Yard 100 First Avenue Boston, Massachusetts 02129 to the attention of the Director of the respective Division of the Authority with respect to the Work, and in the case of notices to the Contractor, to the Contractor's superintendent or any other officer, principal or member of the Contractor, addressed to any such person at the Contractor's principal office. Any of the persons or addresses specified above for notice purposes may be changed by notice given in the manner provided herein from the party concerned to each of the other parties.

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15.4 ANTI-BOYCOTT COVENANT

15.4.1 The Contractor warrants, represents and agrees that during the Contract Time neither it nor any affiliated company, as hereafter defined, will participate in or cooperate with an international boy-cott, as defined in Section 999(b)(3) and (4) of the Internal Revenue Code of 1954, as amended, or engage in conduct declared to be unlawful by Section 2 of Chapter 151E, Massachusetts General Laws. If there shall be a breach in the warranty, representation and agreement con-tained in this article, then without limiting such other rights as it may have the Authority shall be entitled to rescind the Contract. As used herein, an affiliated company shall be any business entity of which at least 51% of the ownership interests are directly or indi-rectly owned by the Contractor or by a person or persons or business entity or entities directly or indirectly owning at least 51% of the ownership interest of the Contractor, or which directly or indirectly owns at least 51% of the Contractor. This provision is included herein pursuant to Commonwealth of Massachusetts Executive Order No.

130.

15.5 RIGHTS AND REMEDIES

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

15.5.2 No action or failure to act by the Authority or Contractor shall constitute a waiver of any right or duty afforded any of them hereunder, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.

15.6 RIGHT OF AUDIT

15.6.1 The Executive Director of MWRA or his designee, the Governor of the Commonwealth of Massachusetts or his designee, the Secretary of Administration and Finance of the Commonwealth of Massachusetts, and the State Auditor or his designee shall have the right at reasonable…