ROAD_DRAINAGE_IMPROVEMENTS_PROJECT.pdf

ROAD DRAINAGE IMPROVEMENTS PROJECT

CONST-2025-221-1

Township of Toms River

33 Washington Street

Toms River, NJ 08753

RELEASE DATE: June 8, 2025

RESPONSE DEADLINE: June 19, 2025, 10:00 am

RESPONSES MUST BE SUBMITTED ELECTRONICALLY TO:

https://secure.procurenow.com/portal/tomsrivertownship https://secure.procurenow.com/portal/%7bproject.government.code%7d

Township of Toms River

ROAD DRAINAGE IMPROVEMENTS PROJECT

I. NOTICE TO BIDDERS

II. INTRODUCTION

III. INSTRUCTIONS FOR E-PROCUREMENT

IV. BID SECURITY

V. BID SUBMISSIONS

VI. GENERAL INFORMATION

VII. STATUTORY AND OTHER REQUIREMENTS

VIII. MANDATORY EQUAL EMPLOYMENT OPPORTUNITY

IX. VENDOR QUESTIONNAIRE

X. BID TABLE

Attachments:

A - Phase II Tide Valve Specs - Backend

Title: ROAD DRAINAGE IMPROVEMENTS PROJECT #CONST-2025-221-1

1. NOTICE TO BIDDERS

NOTICE IS HEREBY GIVEN that sealed bids for the ROAD DRAINAGE IMPROVEMENTS

PROJECT AS REQUIRED BY THE TOWNSHIP OF TOMS RIVER, will be received by the Purchasing

Agent of the Township on Thursday, June 19, 2025 at 10:00 am, prevailing time.

Bids will be received electronically via the Township's OpenGov Bid Portal

Bidders are required to comply with the requirements of N.J.S.A. 10:5-31 et seq. and P.L. 1975 C. 127

(N.J.A.C. 17:27-1 et seq.) regarding equal employment opportunities and with the requirements of P.L.

1977 C.33 regarding corporate and/or partnership ownership.

The right to reject any and all bids is reserved in accordance with applicable law.

By order of the Township Council of Toms River.

Signed:

CASSIE CAPPARELLI, QPA, RPPO

QUALIFIED PURCHASING AGENT

https://procurement.opengov.com/portal/tomsrivertownship

2. INTRODUCTION

2.1. Summary

It is the intent of the Township of Toms River to enter into a contract with the lowest responsive and responsible bidder(s) in compliance with these specifications.

2.2. Background

The project generally consists of the furnishing and installation of 108 check valves at various locations throughout the Township. Additionally, the project includes, reconstruction of inlets, replacement of damaged pipes, furnishing of additional valves, and any other associated work related to installation of check valves at various locations as needed.

2.3. Contact Information

For further information regarding these specifications, contact

CASSIE CAPPARELLI

QUALIFIED PURCHASING AGENT

Email: ccapparelli@tomsrivertownship.com Phone: (732) 341-1000 Ext: 8202

Department:

ENGINEERING

Department Head:

JOHN MELE

TOWNSHIP ENGINEER

2.4. Timeline

ADVERTISEMENT DATE June 8, 2025

SUBMISSION DUE DATE June 19, 2025, 10:00am

Join the meeting Meeting ID: 255 851 313 380 7 Passcode: bP2ca7KM

ANTICIPATED DATE OF AWARD June 25, 2025 mailto:ccapparelli@tomsrivertownship.com tel:(732)341-1000;ext=8202

3. INSTRUCTIONS FOR E-PROCUREMENT

3.1. INSTRUCTIONS FOR E-PROCUREMENT

The Township is accepting electronic bid submissions with OPENGOV by following these instructions:

Sign up for a FREE account at https://procurement.opengov.com/portal/tomsrivertownship

Click on the solicitation of interest, then click "Draft Response".

Follow the instructions to submit the electronic bid.

NOTE: The Township's electronic submission system will not allow electronic bids to be submitted once the deadline has passed, even if you've already started the process. The deadline is based on the countdown timer found on the OPENGOV bid submission page.

https://procurement.opengov.com/portal/tomsrivertownship

4. BID SECURITY

The Township of Toms River shall not accept any Bid Bonds with wording in their content that is contrary to the intention of the Local Public Contracts Law, specifically N.J.S.A. 40A:11-21.

Bonds which contain restrictive language regarding the bonds' intent will be considered NON-

CONFORMING by the Township.

4.1. BID GUARANTEE

The Township of Toms River will not accept any Bid Bonds with wording in their content that is contrary to the intention of the Local Public Contracts Law, specifically designation 40A:11-21 which reads as follows:

GUARANTEE TO BE FURNISHED WITH BID:

A person bidding on a contract for the erection, alteration or repair of a public building, structure, facility or other improvement to real property, the total price of which exceeds $100,000.00, shall furnish a guarantee as provided for herein. A contracting unit may provide that a person bidding on any other contract, advertised in accordance with law, shall furnish a guarantee as provided for herein. The guarantee shall be payable to the contracting unit so that if the contract is awarded to the bidder, the bidder will enter into a contract therefore and will furnish any performance bond or other security required as a guarantee of indemnification. The guarantee shall be in the amount of 10% percent of the bid, but not in excess of

$20,000.00, except as otherwise provided herein, and may be given, at option of the bidder, by certified check, cashier’s check or bid bond. In the event that any law or regulation of the United States imposes any condition upon the awarding of a monetary grant to any contracting unit, which condition requires the depositing of a guarantee in an amount other than 10% of the bid or in excess of $20,000.00, the provisions of this section shall not apply and the requirements of the law or regulation of the United States shall govern.

More specifically, those bid bonds which contain restrictive language regarding the bonds’ intent will be considered NON-CONFORMING by the Township of Toms River.

Pursuant to N.J.S.A. 40A:11-21, bidders shall submit with the bid a Certified Check, Cashier’s Check, or

Bid Bond in the amount of ten percent (10%) of the total bid price, but not in excess of $20,000.00, payable unconditionally to the Township of Toms River.

SUBMITTAL DIRECTIONS:

• If a check is to be submitted, the electronic submittal shall include a copy of the check and the original check shall be delivered to the Toms River Township, 33 Washington Street, Toms

River, NJ 08753, Attention: Purchasing Agent. The check must be received no later than the bid submission date and time.

• If a Bid Bond is to be submitted, the electronic submittal shall include a copy of the Bid Bond and the original bond shall be delivered to Toms River Township, 33 Washington Street, Toms River, NJ 08753, Attention: Purchasing Agent. The Bid Bond must be received no later than the bid submission date and time.

SPECIFIC DELIVERY INSTRUCTIONS:

The Bid Bond or Certified Check must be enclosed in a sealed envelope bearing the name and identifying information of the project and the name and address of the bidder on the outside and addressed to the

Division of Purchasing.

A Bid Bond or Certified Check that is sent via US Postal Services shall be sent to: Toms River Township, PO Box 728, Toms River, NJ 08754.

A Bid Bond or Certified Check that is sent via delivery service shall be sent to: Toms River Township, 33

Washington Street, Toms River, NJ 08753.

When submitting a Bid Bond, it shall contain Power of Attorney for full amount of Bid Bond from a surety company authorized to do business in the State of New Jersey and acceptable to the Township.

The check or bond of the unsuccessful bidder(s) shall be returned as prescribed by law. The check or bond of the bidder to whom the contract is awarded shall be retained until a contract is executed and the required performance bond or other security is submitted. The check or bond of the successful bidder shall be forfeited if the bidder fails to enter into a contract pursuant to statute. A non-conforming bid guarantee or failure to submit required guarantee shall be cause for rejection of the bid.

Should the bidder fail to fulfill such promises, their bid deposit shall become the property of, or be payable to, the Township to be credited towards the damages, with any amount in excess of such damages being returned to the Bidder.

Unless it shall become the property of, or be payable to the Township, said deposit shall be returned to the bidder as hereinafter provided. Bid deposits will be returned to all except the three (3) lowest bidders within ten (10) days (Sundays and legal holidays excluded) after the formal opening of bids and to the three (3) lowest bidders within three (3) days (Sundays and legal holidays excluded) after the Township and the accepted bidder have executed the contract agreement. In the event that the contract has not been awarded by the Township within sixty (60) days after the opening of the bids, bid security will be returned promptly upon demand of any bidder whose bid has not been accepted.

None of the three (3) lowest bids shall be deemed rejected, notwithstanding acceptance of one of the bids, until the contract agreement has been executed by both the Township and the accepted bidder.

4.2. CONSENT OF SURETY

In addition to the bid guarantee, this bid shall be accompanied by a statement, similar in form to that annexed to the bid, of a surety company authorized to do business in the State of New Jersey and acceptable to the Township for any award that may or will exceed $100,000.00 (unless stipulated differently in the bid specification) agreeing, in the event that the bidder is awarded the Contract, to furnish a performance bond of a face value of one hundred percent (100%) of the amount of the bid.

4.3. POWER OF ATTORNEY

Attorneys-In-Fact who sign bid bonds or contract bonds must file with each bond a certified copy of their

Power of Attorney to sign bonds.

4.4. RETURN OF BID GUARANTEE

All bid guarantees, except the guarantees of the three (3) apparent lowest responsible bidders, shall be returned, unless otherwise requested by the bidder, within ten (10) days after the opening of the bids, Sundays and holidays excepted, and the bids of such bidders shall be considered withdrawn. Within three

(3) days, Sundays and holidays excepted, after the awarding and signing of the contract and the approval of the contractor's performance bond, the bid guarantee of the remaining unsuccessful bidders shall be returned to them. If all bids are rejected, the bid guarantees of all bidders will be returned within five (5) working days thereafter.

4.5. PERFORMANCE AND LABOR & MATERIAL PAYMENT BONDS

If the contract award is $100,000.00 or more, the bidder shall furnish a surety bond or bonds of face value, equal to one hundred percent (100%) of the amount of the bid as security for faithful performance of this contract and for the payment of all persons performing labor on the project under this contract and furnishing materials in connection with this contract. The surety on such bond or bonds shall be a duly authorized surety company satisfactory to the Township.

Performance and Labor and Material Payment Bonds must be furnished simultaneously with the delivery of the executed contract by the successful bidder and shall remain in effect for one (1) year after the final contract acceptance by the Township.

4.6. RELEASE OF PERFORMANCE BOND

The surety bond(s) provided shall not be released until final acceptance of the whole work and then, only if all liens or claims have been satisfied and any maintenance or guarantee bonds required have been executed and approved by the Township.

4.7. MAINTENANCE BOND

The Maintenance bond shall be dated as of and is to continue in effect for a period of one (1) year from the date of completion, approval and final contract acceptance of the entire work by the Township.

5. BID SUBMISSIONS

5.1. GENERAL INFORMATION

The vendor shall guarantee any and/or all material and services supplied under these specifications.

Defective or inferior items shall be replaced at the expense of the vendor.

If the vendor who is awarded a contract shall fail to furnish and delivery the supplies or any item thereof, within the time specified and allowed, the Township may cancel those supplies which are not furnished and delivered and may also cancel the remainder of the order and may deduct and retain out of the monies due, or which may become due to such person or firm from the Township, such sum as shall be sufficient to pay the difference between the prices on which the award is made and the prices which the Township may or shall be obligated to pay to procure such supplies from other parties, and in addition, usual damages for breach of contract.

The Township reserves the right to purchase the item(s) and/or service(s) bid herein from any of the below:

• New Jersey State Contracts

• County of Ocean Cooperative Contracts

• Stafford Township Cooperative Pricing System

• Toms River Regional Schools-Board of Education

• County of Somerset Cooperative Pricing System

• County of Bergen Cooperative Pricing System

• Educational Services Commission of New Jersey (ESCNJ) Cooperative

• County of Morris Cooperative Pricing System

5.2. BID SUBMITTAL/WITHDRAWAL

All bids shall be submitted electronically through the Township's electronic procurement portal by the date and time stipulated in the Notice to Bidders.

Bids submitted prior to the date and time of opening may be withdrawn, modified or resubmitted, upon written application to the Division of Purchasing. Once bids are opened, they shall remain firm for a period of sixty (60) days.

Bidders are cautioned when receiving bids through a third-party, as they may not be complete.

5.3. PRICING CERTIFICATION

The Pricing Certification Form is required to be submitted with all bids. This shall be signed by an authorized representative and shall be deemed a fatal defect if not properly submitted.

All pricing shall be entered on the Bid Table(s), which is part of this solicitation.

5.4. PAY-TO-PLAY REQUIREMENTS

Effective January 2007, N.J.S.A. 19:44A-20.27 established a disclosure requirement for business entities.

It requires that, when a business entity has received in any calendar year $50,000 or more in public contracts with public entities, it must file an annual report with the Election Law Enforcement Commission

(ELEC). The report shall disclose any contribution of money or any other thing of value, including an in-kind contribution, or pledge to make a contribution of any kind:

• To a candidate for or the holder of any public office having ultimate responsibility for the awarding of public contracts, or,

• To a political party committee, legislative leadership committee, political committee or continuing political committee.

6. GENERAL INFORMATION

6.1. BIDS AND FORMS

There are two (2) mandatory forms required as part of the pricing: (1) Bid Table and the (2) Pricing

Certification (located in the Vendor Questionnaire). Pricing submitted through any other means, besides the Bid Table, shall not be accepted and shall be cause for rejection. The Pricing Certification certifies the pricing provided in the Bid Table.

6.2. INTERPRETATIONS AND ADDENDA

Any bidder requesting interpretation of the specifications should do so in writing to the Qualified

Purchasing Agent via email at purchasing@tomsrivertownship.com or fax to 732-736-0314, dated at least five (5) days before the established date for bid opening. If necessary, the Township will arrange an addendum, which shall become part of the contract. Prior to the opening of the bids, a copy of these addenda shall be posted on the Township's e-procurement portal.

No oral interpretation shall be given to any prospective bidder.

Pursuant to N.J.S.A. 40A:11-23.2, bidders shall acknowledge receipt of addenda through the OPENGOV software. In the event that the bidder does not acknowledge receipt of any or all addenda, the bid shall be rejected.

6.3. INDEMNIFICATION

The successful bidder shall indemnify and save the Township of Toms River harmless from and against all suits, claims, actions or judgments for any injury or damage sustained or alleged to have been sustained by any party or parties by reason of the use of defective materials, furnished and delivered under the contract to be awarded hereunder or by or on account of any act of omission or commission of any contractor, his, its, or their agents or employees and in case any such action shall be brought against the Township of Toms

River, the contractor shall immediately take charge of and defend same at his, its, or their own cost and expense. The Township may, if it so desires, defend such action and charge the expense of same to the contractor.

6.4. FORM OF CONTRACT

Government entities are not private business/consumer clients; therefore, separate company agreements are not honored unless they are submitted with the bid and approved by the Township Attorney. Terms of the specifications/bid package prevail unless otherwise noted by the vendor as exceptions.

6.5. EXECUTION OF CONTRACT

The bidder to whom the contract is awarded will be required to execute the contract agreement and furnish the required bonds and insurance certificates within ten (10) days (Sunday and legal holidays excluded) after receipt of notification that the contract agreement is ready for signature.

6.6. COMPARISON OF BIDS

Comparison of bids will be made on the basis of the total price bid all Items listed. The estimates of the quantities given are for the purpose of arriving at a total price bid for the project to make a comparison in awarding the work. All lump sum and unit bid prices must be rounded to the nearest cent. Prices less than one cent for unit prices or lump sums will not be accepted.

mailto:purchasing@tomsrivertownship.com

6.7. OBLIGATION OF BIDDERS

At the time of the opening of bids, each bidder will be presumed to have inspected the site and to have read and to be thoroughly familiar with the plans and bid specifications, including all addenda. The failure or omission of any bidder to receive or examine any form, instrument or document shall in no way relieve any bidder from their obligation to fulfill the requirements set forth this solicitation.

6.8. BIDDER RESPONSIBILITY

No contractor, subcontractor or person performing work or services for or in behalf of a contractor or a contracted service provider who has been convicted of any first or second degree crime or any criminal offense set forth in N.J.S.A. 18A:6-7.1(a)(b)(c) shall be permitted on school property.

The contractor or contracted service provider shall submit to the designated school representative a list of those persons who will perform work or services on school property with proof that such persons have submitted to a criminal record check.

The contractor or contracted service provider shall pre-register with the designated school representative all persons who will be on school property by submission of a picture driver’s license, passport or work visa. The school representative shall issue an identification badge which shall be worn and visible by all persons while on school property.

Construction contractors shall provide portable toilets to be used by all workers on site.

All persons working or performing services for or in behalf of a contractor or contracted service provider shall be restricted to defined work areas including ingress and egress to and from such prescribed areas.

Violators of such restricted areas shall be prohibited from working on site.

6.9. BRAND NAMES AND EQUIVALENT PRODUCTS

All items bid shall conform to the written descriptions and specifications. Specific manufacturers, models and brand names may be mentioned in these specifications to establish the level of quality sought by the

Township of Toms River. Manufacturers, models and items of equivalent or greater quality may be substituted and so noted, in writing, on the applicable exception sheets. The Township reserves the right to request a sample of any substitutions being bid, prior to award of contract. Failure to change the descriptions as above will be interpreted to mean that the bidder intends to furnish the particular make of article called for in the specifications, and the Township will insist upon delivery of the specified item. Substitutions will not be permitted after bids have been opened and accepted by the Township.

If the “brand name or equivalent” is used and a bidder proposes an equivalent, the burden rests with the bidder to demonstrate equivalency through the submission of documentation. Mere submission of company or product literature is unacceptable and can be used as a basis for rejection of the claim of equivalence and the bid.

All decisions as to the quality of the products shall be made by the Township and such decisions shall be final.

In the case of rejected materials, the vendor shall be responsible for return freight charges.

6.10. LOWEST RESPONSIBLE BIDDER

The contract will be awarded to the Lowest Responsible Bidder whose total bid including alternative items, amounts to the lowest number of dollars.

If more than one (1) alternate proposal is specified in addition to the base bid, the Township shall specify the criteria or ranked order by which specified alternate proposals shall be selected.

All bids will be compared on the basis of the work shown on the plans and as specified herein, including addenda.

No bid will be accepted that does not contain a price for every item contained in the Bid Table. Bids that are obviously unbalanced may be rejected by the Township.

6.11. PERMITS

The bidder shall be responsible to secure all permits, licenses and bonds, and shall pay all necessary fees required in the performance of the work. The bidder shall fully inform themselves as to the cost of all necessary permits, licenses and bonds, and shall include the cost in the unit prices bid for the work, unless directed differently in the Detail Specifications.

6.12. INFORMATION NOT GUARANTEED

All information given on the plans or in the solicitation relating to subsurface conditions and existing utilities and other structures is from the best sources at present available to the Township. All such information and the drawings of existing conditions are furnished only for the information and convenience of bidders.

It is agreed and understood that the Township does not warrant or guarantee that the materials, utilities or other structures encountered during construction will be the same as those indicated by the information given on the contract drawings or solicitation.

The bidder is responsible for ascertaining the character, quantities and conditions of the various materials and the work to be done.

It further is agreed and understood that the bidder or the contractor will not use any of the information made available to them or obtained in any examination made by them in any manner as a basis or ground of claim or demand of any nature, against the Township or the Engineer, arising from or by reason of any variance which may exist between the information offered and the actual materials or structures encountered during the construction work, except as may otherwise be provided for in the solicitation.

6.13. MATERIALS TO BE BID IN PLACE

Unless otherwise specified, the price bid for each of the items listed on the bid shall be for the material in place. Any and all work necessary to construct, erect or place such materials in the work shall be estimated and included in the cost of each item.

6.14. AWARD OF CONTRACT

The contract period shall be defined in the Detail Specifications. Pursuant to N.J.A.C. 5:30-5.1 et seq, any contract resulting from this bid shall be subject to the availability of funds annually. If the award is to be made on the basis of a base bid only, it shall be made to that responsible bidder submitting the lowest base bid. If the award is to be made on the basis of a combination of a base bid with selected options, it shall be made to that responsible bidder submitting the lowest net bid.

The contracting unit shall award the contract or reject all bids within no more than sixty (60) days, except that the bids of any bidders who consent thereto may, at the request of the contracting unit, be held for consideration for such longer period as may be agreed. When the bid specifications state that the execution of the contract shall be subject to prior approval by a Federal or State agency or department, the contract shall be awarded or all bids rejected within five (5) days after the approval by such Federal or State agency or department.

The award of contract shall not be made unless the necessary funds have been certified by the Township

Chief Financial Officer (CFO), in a lawful manner.

6.15. REJECTION OF BIDS

The Township reserves the right to reject any or all bids, in whole or in part, if not in compliance with the bid specifications.

The Township reserves the right to to adopt alternates; to accept that one which in its judgment best serves its interests; to waive any minor informalities or irregularities in the bids received and to accept the bid from the lowest responsible bidder in accordance with the applicable law.

Pursuant to N.J.S.A. 40A:11-13.2, the Township may reject all bids for any of the following reasons:

A. The lowest bid substantially exceeds the cost estimates for the goods or services

B. The lowest bid substantially exceeds the contracting unit's appropriation for the goods or services

C. The governing body of the contracting unit decides to abandon the project for the provision or performance of the goods or services

D. The contracting unit wants to substantially revise the specifications for the goods or services

E. The purposes or provisions or both of P.L. 1971, c.198 (C.40A:11-1 et seq) are being violated

F. The governing body of the contracting unit decides to use the State authorized contract pursuant to section 12 of P.L. 1971, c.198 (C.40A:11-12)

Multiple bids: More than one (1) bid submitted from an individual, a firm or partnership, a corporation or association or principals under the same or different names, shall not be considered.

Unbalanced bids: Bids which are obviously unbalanced may be rejected at the option of the Township.

6.16. TIE BIDS

Pursuant to the Local Public Contracts Law N.J.S.A. 40A:11-6.1(d), whenever two (2) or more responses to a request for bid offer equal prices and are the lowest responsible bids, the Township may award the contract to the vendor whose response, in the discretion of the Township, is the most advantageous, price and other factors considered. The resolution of award shall explain why the vendor selected is the most advantageous.

6.17. WORKERS AND COMMUNITY RIGHT TO KNOW ACT

Pursuant to N.J.S.A. 34:5A-1 et seq., the State Department of Health has adopted a Workplace Hazardous

Substance List (N.J.A.C. 8:59-9) which includes 2051 substances that pose a threat to the health and safety of employees. Therefore, under the provisions of N.J.A.C. 8:59-7, each bidder shall furnish the Township of Toms River a "Material Safety Data Sheet" for each product they supply the Township, which contains a substance listed on the Hazardous Substance List (N.J.A.C. 8:59-9). These Material Safety Data Sheets shall be submitted to the Township of Toms River by the successful bidder upon execution of their contract.

The Township of Toms River requires that a current copy of the applicable Material Safety Data Sheet be supplied with the delivery of each product to the appropriate Township “ordering” department.

Furthermore, under the provisions of N.J.A.C. 8:59-5, each product shall have the CAS# listed on and an ingredients label affixed or stenciled onto any container that contains such substances and is being supplied to any department of the Township of Toms River.

All “outside cleaning contractors” shall supply the applicable “MSDS” sheets for the products they are using in the performance of their contract with the Township of Toms River.

6.18. LIQUIDATED DAMAGES

Should a contractor fail to complete their work on or before the time set forth above or as provided within, the Township may retain an amount as liquidated damages for each calendar day in accordance with the provisions of that section.

6.19. DAMAGES

The successful bidder, upon failure or refusal to execute and deliver the contract agreement and the required bonds and insurance certificates within the time specified in the bid, shall be liable to the Township for damages suffered, which shall be defined as the difference between the amount specified in the successful bid and the amount for which the Township may contract with another party to perform the work covered by said bid, if the latter amount be in excess of the former, together with any additional expenses incurred by the Township as a result of such bidder's failure to enter into the contract, including, but not limited to, attorney's fees, the expense for re-advertisement for bids and the processing of such bids.

6.20. RESOLUTION FOR CONSTRUCTION CONTRACT DISPUTES

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be referred to the Township Engineer for decision. An initial decision of the Township Engineer shall be required as a condition precedent to litigation for all claims between the Contractor and Township arising prior to the date final payment is due, unless thirty (30) days have passed after the claim has been referred to the

Township Engineer with no decision having been rendered by the Township Engineer.

The Township Engineer shall approve or reject any claim by written decision within ten (10) days of the submission of a claim, and notify the parties of any change to the amount of the contract and/or time for completion of the contract. The approval or rejection of a claim by the Township Engineer shall not be binding upon the parties.

Any claim not resolved by the Township Engineer may be submitted to mediation pursuant to industry standards prior to being submitted to a court for adjudication. If a claim is submitted to a court for adjudication, the venue for all such litigation shall In the Superior Court of New Jersey, Law Division, Ocean County.

6.21. CHANGES, CHANGED CONDITIONS AND CHANGE ORDERS

The Township may, at any time, by written order, and without notice to the sureties, make changes in the work within the general scope of work, consisting of additions, deletions or other revisions. Such changes may include, without limitation, changes in the documents, drawings or specifications, changes in the quantities, estimated quantities, design, line, grade, plan, form, dimensions or materials of the work or any part thereof, changes in the method or manner of performing the work, and changes in Township-furnished property.

Any other written or oral orders (including, without limitation, directions, instructions, interpretations, or determinations) from the Township or Engineer to the contractor that cause material change in the requirements of the solicitation, may be authorized as changes under this Clause; provided, as conditions precedent, that the contractor gives the Township and Engineer advance written notice at the earliest practicable time (in any case before beginning the work which will be the subject of the claimed change and before incurring any costs in connection with the claimed change) of the date, circumstances and source of the alleged change; provided that the contractor expressly states in the notice that the contractor regards the order as a change in the requirements of the solicitation and cites this Article of the contract; and provided that the Township determines that the claim of the contractor is meritorious and issues a duly authorized written change order to that effect.

If any such change causes an increase or decrease in the cost of or time required for the performance of any part of the work under this contract, the Township shall make an adjustment in the contractor price, the required completion times for the contractor work, or both. If any change decreases the work to be performed, the contractor shall not be entitled to damages or anticipated profits on the work that is eliminated.

A. A Contract subject to this section shall include the following differing site conditions provisions as per P.L. 2017 c. 317:

1. If the contractor encounters differing site conditions during the progress of the work of the contract, the contractor shall promptly notify the Township in writing of the specific differing site conditions encountered before the site is further disturbed and before any additional work is performed in the impacted area.

2. Upon receipt of a differing site conditions notice in accordance with paragraph (1) of this subsection, or upon the Township otherwise learning of differing site conditions, the

Township shall promptly undertake an investigation to determine whether differing site conditions are present.

3. If the Township determines different site conditions that may result in additional costs or delays exist, the Township shall provide prompt written notice to the contractor containing directions on how to proceed.

a. (a) The Owner shall make a fair and equitable adjustment to the Contract price and

Contract completion date for increased costs and delays resulting from the agreed upon differing site conditions encountered by the Contractor.

1. Execution of the Contract by the Contractor shall constitute a representation that the

Contractor has visited the site and has become generally familiar with the local conditions under which the work is to be performed.

2. As used in this subsection, “differing site conditions” mean physical conditions at the

Contract work site that are subsurface or otherwise concealed and which differ materially from those indicated in the Contract documents or are of such an unusual nature that the conditions differ materially from those ordinarily encountered and generally recognized as inherent in the work of the character provided for in the Contract.

C. A Contract subject to this section shall include the following suspension of work provisions as per P.L. 2017 c. 317:

1. The Owner shall provide written notice to the Contractor in advance of any suspension of work lasting more than ten (10) calendar days of the performance of all or any portion of the work of the Contract.

2. If the performance of all or any portion of the work of the Contract is suspended by the

Owner for more than ten (10) calendar days due to no fault of the Contractor or as a consequence of an occurrence beyond the Owner’s control, the Contractor shall be entitled to compensation for any resultant delay to the project completion or additional Contractor expenses, and to an extension of time, provided that, to the extent feasible, the Contractor, within ten (10) calendar days following the conclusion of the suspension, notifies the Owner, in writing, of the nature and extent of the suspension of work. The notice shall include available supporting information, which information may thereafter be supplemented by the

Contractor as needed and as may be reasonably requested by the Owner. Whenever a work suspension exceeds sixty (60) days, upon seven days’ written notice, either party shall have the option to terminate the Contract for cause and to be fairly and equitably compensated therefor.

3. Upon receipt of the Contractor’s suspension of work notice in accordance with paragraph

(2) of this subsection, the Owner shall promptly evaluate the Contractor’s notice and promptly advise the

Contractor of its determination on how to proceed in writing.

1. (a) If the Owner determines that the Contractor is entitled to additional compensation or time, the Owner shall make a fair and equitable upward adjustment to the Contract price and

Contract completion date.

(b) If the Owner determines that the Contractor is not entitled to additional compensation or time, the

Contractor shall proceed with the performance of the Contract work, and shall be entitled to pursue a suspension of work claim against the Owner for additional compensation or time attributable to the suspension.

2. Failure of the Contractor to provide timely notice of a suspension of work shall result in a waiver of a claim if the Owner can prove by clear and convincing evidence that the lack of notice or delayed notice by the Contractor actually prejudiced the Owner’s ability to adequately investigate and defend against the claim.

B. A Contract subject to this section shall include the following change in character of work provisions as per P.L. 2017 c. 317:

1. If the Contractor believes that a change directive by the Owner results in a material change to the Contract work, the Contractor shall so notify the Owner in writing. The Contractor shall continue to perform all work on the project that is not the subject of the notice.

2. Upon receipt of the Contractor’s change in character notice in accordance with paragraph (1) of this subsection, the Owner shall promptly evaluate the Contractor’s notice and promptly advise the Contractor of its determination on how to proceed in writing.

3. (a) If the Owner determines that a change to the Contractor’s work caused or directed by the

Owner materially changes the character of any aspect of the Contract work, the Owner shall make a fair and equitable upward adjustment to the Contract price and Contract completion date. The basis for any such price adjustment shall be the difference between the cost of performance of the work as planned at the time of contracting and the actual cost of such work as a result of its change in character, or as otherwise mutually agreed upon by the

Contractor and the Owner prior to the Contractor performing the subject work.

(b) If the Owner determines that the Contractor is not entitled to additional compensation or time, the

Contractor shall continue the performance of all Contract work, and shall be entitled to pursue a claim against the Owner for additional compensation or time attributable to the alleged material change.

1. As used in this subsection, “material change” means a character change which increases or decreases the Contractor’s cost of performing the work, increases or decreases the amount of time by which the Contractor completes the work in relation to the contractually required completion date, or both.

A. A Contract subject to this section shall include the following change in quantity provisions as per

P.L. 2017 c. 317:

1. The Owner may increase or decrease the quantity of work to be performed by the Contractor.

2. (a) If the quantity of a pay item is cumulatively increased or decreased by twenty (20) percent or less from the bid proposal quantity, the quantity change shall be considered a minor change in quantity.

(b) If the quantity of a pay item is increased or decreased by more than twenty (20) percent from the bid proposal quantity, the quantity change shall be considered a major change in quantity.

1. For any minor change in quantity, the Owner shall make payment for the quantity of the pay item performed at the bid price for the pay item.

2. (a) For a major increase in quantity, the Owner or Contractor may request to renegotiate the price for the quantity in excess of one hundred and twenty (120) percent of the bid proposal quantity. If a mutual agreement cannot be reached on a negotiated price for a major quantity increase, the Owner shall pay the actual costs plus an additional ten (10) percent for overhead and an additional ten (10) percent for profit, unless otherwise specified in the original bid.

(b) For a major decrease in quantity, the Owner or Contractor may request to renegotiate the price for the quantity of work performed. If a mutual agreement cannot be reached on a negotiated price for a major quantity decrease, the Owner shall pay the actual costs plus an additional ten (10) percent for overhead and an additional ten (10) percent for profit, unless otherwise specified in the original bid; provided, however, that the Owner shall not make a payment in an amount that exceeds eighty (80) percent of the value of the bid price multiplied by the bid proposal quantity.

1. As used in this subsection, the term “bid proposal quantity” means the quantity indicated in the bid proposal less the quantities designated in the project plans as “if and where directed.”

As a condition precedent to the Contractor's right to any entitlement to increased costs or an extension of time under this Clause, the Contractor must fully document its claim to an adjustment within thirty (30) days after receipt of a written change request/directive from the Owner or within thirty (30) days after the

Contractor gives notice of a constructive change. Such documentation shall, without limitation, include a written statement to the Owner and Engineer setting forth the full particulars of the Contractor's claimed entitlements and the claimed amounts, accompanied by full documentation and detailed accounting in support of all aspects of the claim. The Contractor shall update and supplement its claim and documentation as necessary at intervals not greater than thirty (30) days.

No claims for an adjustment shall be allowed if asserted after final payment under this Contractor.

Total value of change orders executed for a particular Contract shall not cause the originally awarded contract price to be exceeded by more than twenty (20) percent unless otherwise authorized as per N.J.A.C.

5:30-11.

The following general policies shall apply to adjustments for lump sum projects under this Article:

1. The Contractor shall be entitled to any additional identifiable Contractor Direct Costs associated with the changed work as identified above excluding Subcontractor's costs. For adjustments up to $100,000, the Contractor may include up to ten (10) percent overhead factor to its additional identifiable direct job costs, but excluding the cost of any subcontracting, plus up to a ten (10) percent profit factor to its identifiable direct costs plus overhead amount.

2. These overhead and profit factors may be accepted by the Owner as reasonable in lieu of requiring the submission of additional supporting data. However, the Owner reserves the right to review any cost or profit element on a case-by-case basis.

3. Adjustments relating to changes in subcontracted work may be similarly handled and the

Contractor may add up to ten (10) percent to the total cost (including overhead and profit factors) incurred by the Subcontractor. In such cases, the same reservation of rights shall apply.

4. For adjustments more than $100,000, the above factors may be included initially for adjustments but will be subject to negotiation, cost and pricing data, and Owner review requirements.

In order to be allowable in adjustments, costs must be reasonable in nature and amount. Indirect Costs

(overhead costs) must be allocable to the Contractor, i.e., chargeable to the Contractor on the basis of relative benefit received or other relationship. Direct Costs for changed work shall be limited to increases or decreases in the identifiable direct cost of the following:

A. Direct Labor costs, including the time of a foreman while engaged directly upon changed work.

B. Direct Labor employee insurance, social security and other direct costs assessed on Direct Labor payrolls by properly authorized public agencies.

C. Direct costs of equipment, materials and supplies installed in the work. The direct cost of these items shall be the actual costs paid by Contractor to the suppliers of these items, without markup.

D. Direct costs of job equipment associated with the changed work. The compensable cost for construction equipment shall be based upon the most current costs established in the "Rental Rate

Blue Book for Construction Equipment" (published by Equipment Guide-Book Company) for each piece of equipment having a value in excess of $50.00. Equipment and tools of lesser value are considered "small tools" and, as such, are considered to be part of overhead. Costs shall be based on an hourly rate determined by dividing the monthly rate listed in the cited "Blue Book" by 176.

Overhead and profit factors shall only be applied to the rates charged for rental equipment. No overhead or profit will be allowed for Contractor-owned equipment.

Should the Owner and Contractor fail to agree upon any adjustment addressed by this Article, the Engineer shall initially fix the terms of the adjustment and if the Owner or Contractor shall be dissatisfied with the

Engineer's actions in this regard, such party may give notice to the Engineer of a dispute and a request for a formal decision under the Clause of this Contractor entitled, "Responsibility of the Engineer". However, nothing shall excuse the Contractor from proceeding with the Contractor as changed.

The change orders executed for this Contractor shall, in no event, cause the originally awarded Contractor

Price to exceed limitations set forth in N.J.A.C. 5:34-4.1 et. seq., except as may be authorized under such regulation.

6.22. EMERGENT MATERIALS, SUPPLIES AND EQUIPMENT

The Township of Toms River reserves the right to require any and all of the successful bidders to both quote and timely deliver, any emergent materials, supplies, equipment, etc. which are consistent with the items listed but not specifically set forth in this document during the period of performance (term of this agreement/contract). Emergent requirements include, but are not limited to, those currently undefined, unanticipated and otherwise non-routine requirements which could not have been anticipated in this solicitation.

6.23. TRANSITIONAL PERIOD

Pursuant to N.J.S.A. 40A:11-14, all contracts shall cease to have effect at the end of the contracted period and shall not be extended by any mechanism or provision, unless in conformance with the LPCL, except that a contract may be extended by mutual agreement of the parties to the contract when a contracting unit has commenced rebidding prior to the time the contract expires or when the awarding of a contract is pending at the time the contract expires.

6.24. INSURANCE REQUIREMENTS

Certificates of Liability and Worker's Compensation insurance satisfactory to the Township of Toms River shall be filed with the Division of Purchasing, prior to award.

All of the vendor's insurance coverages shall contain a clause indemnifying and saving harmless the

Township of Toms River, and their agents from any and all liability of whatever nature arising from the work to be performed under the contract, including attorney's fees and costs in connection with the defense of such claims. The Certificate of Insurance furnished by the vendor shall state specifically that the above indemnification is guaranteed by the policy. Such statement, if not included in the body of the policy, shall be typed on the face or back of the certificate.

The vendor shall maintain all coverages submitted prior to award of contract for the whole duration. The

Certificate of Insurance shall name the Township the Certificate Holder and as an additional insured on a primary and non-contributory basis.

MINIMUM REQUIREMENTS TO BE CARRIED BY THE VENDOR:

Comprehensive General Liability: Limits shall be a minimum of $1,000,000.00 bodily injury and property damage, per occurrence/$2,000,000.00 aggregate.

Comprehensive Automobile Liability: Limits shall be a minimum of $1,000,000.00 bodily injury and property damage, per occurrence/$2,000,000.00 aggregate. The Certificate shall cover (a) Hired Vehicles and (b) Non-owned Vehicles.

Worker's Compensation & Employer's Liability: The vendor shall carry adequate worker's compensation insurance for all employees employed in connection with the work and any work in sublet. The vendor shall require each subcontractor to provide the same for their employees, unless such employees are covered by the protection afforded by the vendor's insurance.

Coverage A shall be New Jersey Statutory

Coverage B (Employer's Liability) shall be unlimited as per New Jersey Workmen's Compensation Law

Proof of insurance is required to be submitted prior to award of contract.

6.25. MULTI-YEAR CONTRACTS

In accordance with the Local Public Contracts Law, any multi-year contracts awarded shall be subject to the availability and appropriation of sufficient funds on an annual basis.

If funds are not available for the continuance of any goods provided or services performed, whether in whole or in part, the Township shall terminate the contract at the end of the fiscal year.

6.26. PRICING

All pricing submitted shall be net and inclusive of all charges for packing, crating, containers, etc. The price(s) bid shall be net, F.O.B. destination, firm and not subject to any increases during the term of the contract, including fuel surcharges. A new contract shall be solicited if any price escalations or surcharges are imposed, and the current contract shall be considered void.

Additional charges shall not be accepted by the Township when partial shipments are made at the vendor's convenience.

In the event of a price decrease during the contract period, the Township of Toms River shall receive the benefit of such price reduction. The Division of Purchasing shall be notified, in writing, of any price reductions within five (5) business days of the effective date. Written notification shall be sent to purchasing@tomsrivertownship.com.

Failure to report price reductions shall result in cancellation of the contract for cause.

6.27. ESTIMATED QUANTITIES (OPEN-ENDED CONTRACTS)

The Township has attempted to estimate the approximate amounts of each item bid to cover its requirements; however, past experience shows that the final quantity may be different than originally bid.

The Township reserves the right to increase or decrease quantities pursuant to N.J.A.C. 5:30-11.2. No minimum purchase is guaranteed.

6.28. SUBSTITUTIONS

In the various detailed sections of the specifications, where any item of equipment or material is indicated by proprietary name, trade name, or name of one or more manufacturers, with the addition of such expressions as "or equal", it is to be understood that equivalent equipment or products of either a manufacturer named or of a manufacturer not named, which meet the detailed requirements of the specifications, is intended, subject to the acceptance of the Engineer as to equality thereof.