SDN1501E-EC1 - ESA for RFP Final.pdf

Project #: SDN1501E-EC1 - Norfolk Sheriff Depart. Energy Comprehensive Design Build Project

DCAMM Standard Energy Services Agreement – April 2016

COMMONWEALTH OF MASSACHUSETTS

STANDARD ENERGY SERVICES AGREEMENT

For Design and Installation of New Equipment/Systems (for projects subject to M.G.L. c. 25A, §11C)

AWARDING AUTHORITY/CLIENT

AGENCY:

DIVISION OF CAPITAL ASSET MANAGEMENT

AND MAINTENANCE/

NORFOLK COUNTY SHERIFF’S DEPARTMENT

PROJECT NUMBER: SDN1501E-EC1

PROJECT TITLE: SDN-NORFOLK SHERIFF-ENERGY-

COMPREHENSIVE DESIGN BUILD

FACILITY: NORFOLK SHERIFF’S DEPARTMENT OFFICE

PROJECT ADDRESS: 200 WEST STREET - DEDHAM, MA 02026

CONTRACTOR NAME:

CONTRACTOR ADDRESS:

CONTRACTOR TELEPHONE:

CONTRACTOR FEDERAL

EMPLOYERS

IDENTIFICATION NUMBER:

Effective Date:

Date of Completion:

Total Contract Value: $ ii

TABLE OF CONTENTS

RECITALS

GENERAL PROVISIONS

Section 1 Definition of Terms Section 2 The Contract and Contract Documents Section 3 Total Contract Value Section 4 Payment Section 5 Scope of Services Summary

PART A – DESIGN

Section 6 Design Requirements and Approvals

PART B – INSTALLATION SERVICES

Section 7 Working Relationships Section 8 Location and Access Section 9 Salvage Value Section 10 Temporary Utilities Section 11 Damages Caused by CONTRACTOR Section 12 Installation Commencement and Progress Section 13 Notice of Deficiencies in Existing Equipment/Systems Subsequent to

Commencement of Installation Services Section 14 Modification of Schedules to Reflect “As-Built” Conditions Section 15 Delays in the Installation Services Section 16 Modification/Alteration of New Equipment/Systems and Interference with

Existing Equipment/Systems Section 17 Health, Safety and Accident Prevention Section 18 Waste Management Section 19 Materials and Equipment

Section 20 Equal Employment Opportunity, Non-Discrimination in Hiring and Employment and Affirmative Action Program [Executive Order Nos. 526 and 565]

Section 21 Minority/Women Participation Goals and Anti-Discrimination Programs ... 26 Section 22 Service-Disabled Veteran- Owned Business Enterprises (SDVOBE) Section 23 Prevailing Wages Section 24 Changes in Scope of Services Section 25 Commissioning Section 26 Training Section 27 Metering Section 28 Substantial Completion/Final Acceptance Section 29 Ownership of Property

PART C – POST-INSTALLATION

Section 30 Savings Section 31 Warranty and Replenishable Stock Section 32 Maintenance Section 33 Standards of Comfort Section 34 Incentives iii

PART D – LEGAL/SPECIAL PROVISIONS

Section 35 Indemnification Section 36 Insurance Requirements Section 37 Bonding Requirements/Performance and Payment Bonds Section 38 Default Section 39 Termination Section 40 Dispute Resolution Section 41 Assignment Section 42 Representations and Warranties Section 43 Headings Section 44 No Waiver Section 45 Complete Agreement/Severability Section 46 Amendments Section 47 Further Acts/Documents Section 48 Notice and Consent Section 49 Non-Appropriation Section 50 Legal or Equitable Remedies; Complete Performance Section 51 Application of Massachusetts Law/Compliance with Applicable Laws Section 52 Force Majeure Section 53 Independent Contractor Section 54 CONTRACTOR’s Accounting Method Requirements (M.G.L. c. 30, § 39R) . 58 Section 55 Massachusetts and United States Manufacturers Section 56 Anti-Boycott Covenant (Executive Order No. 130) Section 57 Workforce Certification: Certification of Compliance with Workforce Related

Legal Requirements [Executive Order 481] Section 58 Hiring of State Employees By State Contractors [Executive Order No. 346]63 Section 59 Certification Regarding Northern Ireland [M.G.L. c. 7, §22C] Section 60 Sales Tax Exemption Section 61 Leading By Example – Clean Energy and Efficient Buildings [Executive

Order 484] Section 62 Confidentiality; Personal Data [M.G.L. c. 66A, Executive Order 504] Section 63 Signatures

SCHEDULE A: DESIGN

A-1: Level of Design Services A-2: DCAMM Design Procedures A-3: Sustainable Design Guidelines

SCHEDULE B: INSTALLATION SERVICES

B-1: Scope of Services Summary B-2: Permitted Work Hours for Facility B-3: Payment Terms B-4: Requirements for Resident Engineer and Field Offices B-5: Commissioning/M&V B-6: Training B-7: Metering and other Requirements related to Energy Credits iv

B-8: Goals for Participation by M/WBE Enterprises/Equal Employment Opportunity, Anti-Discrimination, and Affirmative Action Program (Executive Orders No. 526 and No. 565)

B-9: Prevailing Wage Rates B-10: Instructions/Model Forms for Submission of Project Change Requests B-11: Closeout Procedures and Forms

SCHEDULE C: POST-INSTALLATION

C-1: Warranty C-2: Stock and Replacement Parts C-3: Maintenance C-4: Energy Savings

EXHIBITS

EXHIBIT I: COMPLIANCE AND CERTIFICATION FORMS FOR CERTIFIED PAYROLL,

M/WBE AND WORKFORCE REQUIREMENTS

EXHIBIT II: PERFORMANCE BOND

EXHIBIT III: LABOR AND MATERIAL PAYMENT BOND

EXHIBIT IV: INSURANCE CERTIFICATES

EXHIBIT V: TRENCH APPLICATION AND PERMIT DOCUMENTS

EXHIBIT VI: CERTIFICATE OF COMPLIANCE WITH STATE TAX LAWS AND WITH

UNEMPLOYMENT COMPENSATION CONTRIBUTION REQUIREMENTS

EXHIBIT VII: VOTE OF CORPORATION

EXHIBIT VIII: AFFIDAVIT OF COMPLIANCE

EXHIBIT IX: EXECUTIVE ORDER 504 CONTRACTOR CERTIFICATION FORM

APPENDIX A: REFERENCE DOCUMENTS

ENERGY SERVICES AGREEMENT

This Energy Services Agreement (ESA or the Contract) is entered into as of the date of last execution (Effective Date) by and between:

, a licensed to conduct business in the Commonwealth of Massachusetts whose principal place of business is located at (CONTRACTOR) and the Commonwealth of Massachusetts through its Division of Capital Asset Management and Maintenance (DCAMM) and its client Norfolk County Sheriff’s Department (FACILITY) located in Dedham , Massachusetts (DCAMM and FACILITY at times collectively called CUSTOMER)(CONTRACTOR, DCAMM, and FACILITY are each a Party and collectively the Parties). The purpose of the Contract is to provide for the design, construction, installation, commissioning, and maintenance by CONTRACTOR of New Equipment/Systems and the rendering of other services by CONTRACTOR designed to reduce utility consumption and cost at CUSTOMER’s FACILITY located at 200 West Street, Dedham, MA 02026 which services are more precisely described in Schedule B-1: Scope of Services Summary attached hereto and incorporated herein by reference.

RECITALS

WHEREAS, CUSTOMER owns and operates the Premises (as herein defined) and desires to install energy saving New Equipment/Systems and Services to save energy and water and associated costs at said Premises;

WHEREAS, CONTRACTOR provides a service for reducing energy and water consumption and costs through the Design, Installation, Commissioning and Maintenance of New Equipment/Services on the Premises;

WHEREAS, in accordance with the provisions of M.G.L. c. 25A, §11C, CUSTOMER solicited proposals from qualified firms through the issuance of a request for proposals (RFP) dated xxxxxxx ;

WHEREAS, CONTRACTOR submitted a proposal dated xxxxxxxx (the

Proposal) in response to the RFP;

WHEREAS, CUSTOMER is authorized pursuant to M.G.L. c. 25A, §11C, to retain CONTRACTOR to design, acquire, install, commission and maintain the New Equipment/Systems as set forth in the Contract, all as more fully set forth herein, subject to all the terms and conditions of the Contract (the Project); and

WHEREAS, CUSTOMER shall compensate CONTRACTOR for the Services and all other Services pursuant to Section 4 and Schedule B-3: Payment Terms of the Contract.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is mutually acknowledged, it is agreed as follows:

GENERAL PROVISIONS

Section 1 Definition of Terms

The following words shall have the following meanings as used in the Contract:

Builder’s Warranty Shall have the meaning set forth in Section 31 of the Contract.

Change Order Shall have the meaning set forth in Section 24 of the Contract.

Construction Schedule A Critical Path devised schedule of Services provided by

CONTRACTOR and accepted by CUSTOMER in accordance with Section 5.2b.

Contract Term The duration of the (1) Design and Installation Term and (2) Post- Installation Term, both as defined in Section 2 of the Contract.

Date of Completion The date upon which the CONTRACTOR shall have completed the Installation Services and the Design and Installation Period shall end. The Date of Completion is identified on the cover page of the Contract and occurs on the date that is 45 days after the completion of the Design and Installation Term (as set forth in Schedule B-1: Scope of Services Summary) to allow for payment of the final Request for Payment for the Installation Services in accordance with Section 4.

Design The 100% design documents for the Project provided by CONTRACTOR and approved and accepted by CUSTOMER in accordance with Section 6.3.

Designer The architect(s) or professional engineers (licensed and registered in the Commonwealth of Massachusetts) employed by or retained by CONTRACTOR for the Project.

ECM Energy Conservation Measure.

Effective Date The latest date of the original execution of the Contract by one of the Parties.

Energy Savings The estimated energy and water savings (both cost and unit) to be achieved by the installation of New Equipment/Systems, as outlined in Schedule C-4: Energy Savings. These savings are not guaranteed savings.

Existing Equipment/Systems

All equipment and related systems existing at the Premises at the time of the Effective Date, and prior to the commencement of the Installation Services set forth in SCHEDULE B: INSTALLATION

SERVICES.

Final ECM/Equipment Acceptance Notice

Written notice from CUSTOMER to CONTRACTOR indicating that CUSTOMER accepts the installation of a particular ECM(s) as 100% complete in accordance with Section 28 of the Contract.

Final Project Notification Approval

Written notice from the CUSTOMER to CONTRACTOR indicating that CUSTOMER accepts all of the New Equipment/Systems installed by CONTRACTOR as 100% complete and that all other requirements of the Contract have been met to the satisfaction of CUSTOMER, in accordance with Section 28 of the Contract.

Final Project Notification Approval Date

The date of the Final Project Notification Approval issued by CUSTOMER in accordance with Section 28 of the Contract.

Installation Costs

All costs associated with the Installation Services.

Installation Services The delivery, installation, and operation of the New Equipment/Systems to be performed by CONTRACTOR, as required by the Contract, and all other Services described in

SCHEDULE B: INSTALLATION SERVICES.

Laws All applicable laws, including but not limited to applicable statutes, regulations, ordinances, codes, laws, orders, decrees, approvals, certificates and requirements of governmental and quasi-governmental authorities.

M/WBE Minority and/or Women Business Enterprises as defined by Executive Orders 526 and 565.

New Equipment/Systems

The New Equipment/Systems and related systems to be furnished and installed by CONTRACTOR as set forth in Schedule B-1:

Scope of Services Summary.

Post-Installation Term Shall have the meaning set forth in Section 2.4.

Project Change Request

CONTRACTOR’s written request for a change order submitted in accordance with the requirements of Section 24 and Schedule B-10: Instructions/Model Forms for Submission of Project Change Requests of the Contract.

Project Engineer DCAMM’s representative reporting to the Project Manager.

Project Manager DCAMM’s representative responsible for overseeing the planning, design and construction of this project.

Premises The land and building(s) or space within any such building on which, or in which, CONTRACTOR is to perform the Services and, as more specifically described in Schedule B-1: Scope of Services Summary

Resident Engineer DCAMM’s on-site representative.

Services All work to be performed by CONTRACTOR on the Project, including but not limited to Design, Installation, and Post- Installation Services.

Subcontractor(s) Any person or entity retained by CONTRACTOR to provide any Services required by CONTRACTOR under the Contract including but not limited to the provision of professional services (such as engineering or design services), labor and materials or labor only (whether for installation or maintenance).

Substantial Completion Occurs for each ECM only upon CUSTOMER’s acceptance of CONTRACTOR’s Substantial Completion Notice confirming the successful operation of each individual ECM for thirty (30) consecutive days and issuance of a Substantial Completion Approval Notice in compliance with Section 28 of the Contract.

Substantial Completion Date

The date upon which CUSTOMER accepts an ECM(s) as substantially complete, in accordance with Section 28 of the Contract.

Approval Notice

CUSTOMER’s written notice to CONTRACTOR that CUSTOMER accepts an ECM(s) as substantially complete as of the Substantial Completion Approval Date, in accordance with Section 28 of the

Approval Request

Written notice from CONTRACTOR to CUSTOMER certifying that CONTRACTOR has completed all closeout procedures for a particular ECM(s) and requesting that CUSTOMER accept CONTRACTOR’s proposed Substantial Completion Date in accordance with Section 28 of the Contract.

Notice

Written notice from CONTRACTOR to CUSTOMER informing CUSTOMER that the required Installation Services for a particular ECM are complete and the date upon which CONTRACTOR intends to begin the required thirty (30) days of consecutive operation of all New Equipment/Systems associated with such

ECM.

Termination Payment The payment to be made by CUSTOMER to CONTRACTOR in the event of a termination of the Contract pursuant to Section 39 and calculated in accordance with Schedule B-3: Payment Terms.

Total Contract Value The total cost of the contract for delivery and installation of all ECMs and provision of all other Services as set forth in Section 3, SCHEDULE B: INSTALLATION SERVICES, and Schedule B-3:

Payment Terms, as of the Effective Date.

Section 2 The Contract and Contract Documents

Sections 1 through 63 of this document, and the Schedules and Exhibits set forth constitute the Contract. Other documents, when accepted by the Parties, shall be incorporated by reference and shall constitute Contract Documents. Such documents shall include:

The Schedule of Values (incorporated at Schedule B-3: Payment Terms)

The Construction Schedule (incorporated at Schedule B-1: Scope of Services Summary

Approved and Completed M/WBE Schedules of Participation and Letters of Intent (Schedule B-8: Goals for Participation by M/WBE Enterprises/Equal Employment Opportunity, Anti-Discrimination, and Affirmative Action Program (Executive Orders No. 526 and No. 565) B-8: Goals for Participation by M/WBE Enterprises/Equal Employment Opportunity, Anti-Discrimination, and Affirmative Action Program (Executive Orders No. 526 and No. 565))

Change Order Forms (referenced at Schedule B-10: Instructions/Model Forms for Submission of Project Change Requests, included on CD)

Closeout Forms (referenced at Schedule B-11: Closeout Procedures and Forms, included on CD)

Prevailing Wage Rate Forms (referenced at Schedule B-9: Prevailing Wage Rates, included on CD)

Reference Documents (set forth at APPENDIX A: REFERENCE DOCUMENTS)

Failure to set forth a Schedule, Exhibit, or Appendix in the Table of Contents shall not exclude said Schedule, Exhibit, or Appendices from the Contract. The document shall speak for itself.

2.1 Entire Agreement. The provisions of the Contract and any documents incorporated by reference therein, along with any agreed upon amendments thereto, shall constitute the entire agreement between the Parties.

2.2 Priority. To the extent that there is a conflict or ambiguity and any documents attached hereto and/or incorporated by reference herein, the following order of precedence shall control: the Contract, the Design, the CONTRACTOR’s proposal, the Reference Documents contained in Appendix A, any Contract Documents.

2.3 Days. Unless otherwise indicated in the CONTRACT, all references to “days” shall mean calendar days.

2.4 Contract Term. The Contract Term shall commence on the Effective Date and consist of two phases:

a. Design and Installation Term, consisting of the Design and Installation Services, terminating on the Final ECM/Equipment Approval Date; and

b. The Post-Installation Term, which shall begin on the Substantial Completion

Date and continue until the completion of such Maintenance Services as set forth in Schedule C-3: Maintenance.

Section 3 Total Contract Value

The Total Contract Value is the total amount paid to CONTRACTOR by the CUSTOMER over the Contract Term, as determined by Schedule B-3: Payment Terms.

Section 4 Payment

4.1 CONTRACTOR Compensation and Fees. Provided CONTRACTOR is not in default of its obligations hereunder, CUSTOMER shall pay CONTRACTOR the Total Contract Value in accordance with the payment schedule set forth in Schedule B-3:

Payment Terms, as the same may be amended in accordance with the terms of the

4.2 Schedule of Values. Within thirty (30) days of the Effective Date, CONTRACTOR shall submit to DCAMM a finalized Schedule of Values (as described in Schedule B- 3: Payment Terms) based upon the Total Contract Value. The Schedule of Values shall set forth the costs for the various portions of the Services, including quantities, aggregating the Installation Costs and divided so as to facilitate progress of work and evaluation of Project changes. The Schedule of Values shall detail the Services performed by either Minority-Owned Business Enterprises (MBE), Women-Owned Business Enterprises (WBE), or Service-Disabled Veteran-Owned Business Enterprises (SDVOBE’s), as set forth in SCHEDULE B: INSTALLATION SERVICES. The Schedule of Values shall be prepared in such format as DCAMM may approve, and shall include data to substantiate its accuracy. When approved by DCAMM, it shall constitute the Schedule of Values and be included in Schedule B-3:

Payment Terms to this Contract.

4.3 Request for Payment. CONTRACTOR shall submit to DCAMM Requests for

Payment in accordance with the timetable provided for in Schedule B-3: Payment Terms.

4.4 Late Payments. Payment due either party hereunder shall be due and payable within forty-five (45) days of the invoice date. Interest shall accrue on any past due balance owed to either party hereunder at the rate established by the Comptroller in accordance with M.G.L., c. 29, § 29C. This remedy shall be in addition to, and not exclusive of, any other remedy available under the Contract or applicable law.

4.5 Certification by CONTRACTOR. If CUSTOMER so requests in writing, CONTRACTOR shall certify to DCAMM on a monthly basis, that payments owed by CONTRACTOR to Subcontractors and not under dispute have been paid in a timely fashion and that CONTRACTOR has satisfied its current payment obligations regarding the New Equipment/Systems.

Section 5 Scope of Services Summary

5.1 Standards of Service. CONTRACTOR shall perform all Services in such a manner that is in accordance with sound engineering and safety practices, achieves the Energy Savings, and is in compliance with the Contract and any amendments thereto. Without limiting the foregoing, CONTRACTOR shall perform all Services in such a manner so as not to harm the structural integrity of the buildings or their operating systems and so as to conform to the standards set forth in the Contract and standards in the industry. CONTRACTOR shall be responsible to pay for all labor, materials, equipment, tools, construction equipment and machinery, transportation and other facilities and work necessary for the proper execution and completion of the Services.

5.2 Phases of Services. The Services for the Project shall consist of the following and shall be performed within the Contract Term:

a. Design Services. CONTRACTOR agrees to perform the design of the New Equipment/Systems, as set forth in the Contract at PART A – DESIGN and

SCHEDULE A: DESIGN.

b. Installation Services. CONTRACTOR shall construct and install the New

Equipment/Systems into the Premises pursuant to the specifications in SCHEDULE B: INSTALLATION SERVICES. The Installation Services shall proceed in accordance with the Construction Schedule. The Construction Schedule shall be submitted by the CONTRACTOR no more than 5 days following the Effective Date. Upon approval by CUSTOMER, the Construction Schedule shall be incorporated by reference into the CONTRACT at Schedule B-1: Scope of Services Summary.

c. Post-Installation Services. CONTRACTOR shall perform Post-Installation

Services, consisting of Warranty and Replenishable Stock, Maintenance, Savings and (if applicable) continuing Metering and M&V services, all as set forth in more detail at SCHEDULE C: POST-INSTALLATION.

d. Other Services. CONTRACTOR shall be responsible for all other Services necessary to complete the Project, including but not limited to those detailed in Schedule B-1: Scope of Services Summary. [Take out Sentence if not Applicable]

5.3 CONTRACTOR’s Use of Subcontractors.

a. CONTRACTOR may use Subcontractors in meeting its obligations hereunder provided that in each case CONTRACTOR shall remain fully liable for all work under the Contract. CONTRACTOR shall supervise and direct the Services and shall be solely responsible for all design, construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Services under the Contract.

b. CONTRACTOR shall coordinate the activities of CONTRACTOR’s employees, Subcontractors, agents or suppliers with those of the FACILITY, its employees, and agents. CONTRACTOR shall not commit or permit any act which will interfere with the performance of the normal activities conducted by FACILITY or its employees, agents, visitors, licensees, and/or invitees on the Premises without prior written approval of CUSTOMER.

c. CONTRACTOR shall pay or cause payments to be made for all labor performed or furnished and for all materials used or employed in carrying out the Contract.

d. CUSTOMER reserves the right to reject any Subcontractors, such right not to be unreasonably exercised. In the event that CONTRACTOR retains Subcontractors to perform any design, engineering, installation or other Services required under the Contract, CONTRACTOR shall provide CUSTOMER with a written description of the qualifications of each Subcontractor for CUSTOMER’s approval prior to proceeding with any Services under the Contract, such approval not to be unreasonably withheld.

e. CUSTOMER has the right to demand in writing that CONTRACTOR remove an employee or Subcontractor from the Project for reasons stated in writing.

PART A – DESIGN

Section 6 Design Requirements and Approvals

6.1 CONTRACTOR’s Duty of Proper Design. All Design Services called for by the Contract shall be performed by properly qualified and licensed professionals employed by CONTRACTOR and shall be performed in accordance with all Laws.

CONTRACTOR shall perform all Design Services in accordance with the standards set forth in the Contract, including with limitation, those set forth in Section 5.1, Section 33, Schedule A-1: Level of Design Services, and Schedule A-3:

Sustainable Design Guidelines.

6.2 Design

a. Prior to the installation of the applicable ECMs, CONTRACTOR shall submit

50%, 90% and 100% designs for ECMs as outlined in Schedule A-1: Level of Design Services, unless otherwise noted in Schedule A-1: Level of Design Services. No Installation Services shall proceed on the ECMs set forth in Schedule B-1: Scope of Services Summary until the 100% design has been accepted by CUSTOMER, such acceptance not to be unreasonably withheld or delayed.

b. Designs shall follow guidelines established in Schedule A-1: Level of Design Services. CONTRACTOR must have all drawings and design documents stamped by a Massachusetts registered professional engineer for each corresponding discipline, if applicable.

c. CONTRACTOR shall provide three (3) CDs with electronic PDF files of the drawings and at least four (4) paper copies of the same. CONTRACTOR shall also provide three (3) CDs, with electronic PDF files containing copies of the required specifications and four (4) paper copies of the same. Where applicable, in lieu of paper drawings, CONTRACTOR shall provide three (3) CDs (in electronic spreadsheet format) containing a detailed inventory of repairs of, for example, lighting, steam traps, and/or water fixtures and a minimum of four (4) paper copies of the same.

d. CONTRACTOR shall prepare drawings based upon and in accordance with DCAMM’s CAD Standards Manual revised February 2013 and DCAMM’s Building Information Modeling (BIM) List of Design and Preconstruction Services, dated April 13, 2015 which are available on the DCAMM website (www.mass.gov/dcamm), and any reasonable and necessary updates incorporated therein after the Effective Date. DCAMM and the CONTRACTOR shall cooperate in the coordination of BIM/Revit standards with DCAMM CAD standards and make reasonable efforts to avoid incompatibilities and conflicts where possible between the two documentation systems.

6.3 Design Review and Acceptance. Upon approval of test installations, if applicable, under Section 6.7, the design shall be submitted for DCAMM review and acceptance.

DCAMM shall review all Design documents for compliance with SCHEDULE A:

DESIGN and notify CONTRACTOR within a maximum of thirty (30) days if the Design is acceptable or to respond with objections, changes, or requests for clarification.

6.4 Notice of Deficiencies in Existing Equipment/Systems. If CONTRACTOR is aware or becomes aware of any deficiencies in the Existing Equipment/Systems that were not noted in the Proposal that may prevent CONTRACTOR from proper completion of the Design, Installation, or Post-Installation Services, then CONTRACTOR shall provide immediate written notice to CUSTOMER of such deficiencies.

Upon receipt of notice of deficiencies, CONTRACTOR and CUSTOMER shall determine what, if any, potential modifications to the Design, New Equipment/Systems and/or Installation Services may be required to meet these contractual requirements prior to the commencement of the Installation Services. If the parties are unable to reach agreement on the changes or potential changes required and the responsibility of cost, the dispute shall be resolved in accordance with Section 40 of the Contract.

6.5 Submittals. CONTRACTOR shall not commence with any Services related to any submittal requiring DCAMM’s review and/or approval prior to DCAMM’s review as provided herein. Prior to the installation of the New Equipment/Systems, CONTRACTOR shall provide DCAMM with six (6) copies of the following submittals relating to the New Equipment/Systems for DCAMM review: descriptive literature, specifications, location key, manufacturer cut sheets, shop drawings and, if requested, sample products, related warranties and maintenance agreements.

CONTRACTOR shall provide such submittals in documentation and format as may be determined by DCAMM. DCAMM shall notify CONTRACTOR within a maximum of thirty (30) days if the submittal is acceptable or respond with objections, changes, or requests for clarification.

http://www.mass.gov/dcamm

6.6 Permits and Approvals. All required permits, approvals and licenses required by Laws for the Services, including without limitation, all federal, state and local building, plumbing and electrical permits and utility Interconnection Agreements, shall be secured and paid for by CONTRACTOR prior to commencement of Installation Services or Final ECM/Equipment Acceptance Date, as appropriate for the respective permits, approvals and licenses. CUSTOMER shall use its reasonable efforts to assist CONTRACTOR in obtaining such necessary permits and approvals for installation of the New Equipment/Systems. In no event shall CUSTOMER, however, be responsible for payment of any permit or license fees. Before commencing any Services requiring a permit or license, CONTRACTOR shall furnish copies of each such required permit or license to CUSTOMER. FACILITY shall be responsible to obtain any permits for operation of the New Equipment/Systems after Final Project Notification Approval.

6.7 Test Installations. If requested by CUSTOMER, CONTRACTOR and CUSTOMER shall cooperatively identify areas suitable for test installation. At a minimum of two (2) weeks prior to final Design acceptance in accordance with Section 6.3 above or prior to acceptance of New Equipment/Systems submittals pursuant to Section 6.5, CONTRACTOR shall perform test installations of mutually agreed upon New Equipment/Systems for selected ECMs in specified locations on the Premises.

CUSTOMER shall inspect each test installation to determine the adequacy of the proposed ECMs.

6.8 As-Builts. CONTRACTOR shall provide CUSTOMER with duplicate paper copies of

"as-built" drawings of all modified conditions, excluding repair of Existing Equipment/Systems and installation of lighting and plumbing fixtures, associated with the project conforming to typical engineering standards. All drawings shall be stamped by a Massachusetts registered professional engineer for each corresponding trade if applicable, and shall be on bond paper, full size (30” x 42”).

Six (6) CD’s with electronic copies of the as-builts shall be provided as follows: three

(3) shall be in a “TIFF” format of the stamped as-builts and three (3) in AutoCAD format. Three (3) CD’s with electronic PDF files of specifications shall be provided. A detailed inventory of repairs and lighting, steam traps, and/or water fixtures shall be provided in lieu of drawings, three (3) in paper copy and three (3) CDs in electronic spreadsheet format.

6.9 Energy Savings. The Energy Savings are a performance specification for this

Contract. As such, CONTRACTOR represents to CUSTOMER the following:

a. New Equipment/Systems provided in the Design meet or exceed the published catalog ratings.

b. The Design allows each ECM to meet or exceed the associated Energy Savings shown in Schedule C-4: Energy Savings.

PART B – INSTALLATION SERVICES

Section 7 Working Relationships

7.1 CUSTOMER Authorization/Approval. DCAMM shall retain ultimate approvals over the scope of Services, the qualifications of CONTRACTOR's consultants and Subcontractors, New Equipment/Systems installed, and end use conditions. No Services shall proceed without written consent of DCAMM; however, such consent shall not be unreasonably withheld or delayed. For purposes of the Contract, the Commissioner of DCAMM or his/her designee, in consultation with the FACILITY, or his/her designee, shall be authorized to provide approvals, consent, acceptance, or any other procedural authorization related to the installation of the New Equipment/Systems required to be provided to CONTRACTOR under the Contract.

7.2 CONTRACTOR Responsibility. All Installation Services called for by the Contract shall be performed by properly qualified and licensed professionals employed by CONTRACTOR and shall be performed in accordance with all Laws.

7.3 CONTRACTOR’s Superintendent and Supervision. CONTRACTOR shall provide, during the progress of the Installation Services, a competent and Massachusetts licensed construction superintendent in accordance with applicable Laws, and CONTRACTOR’s project manager with experience managing a similar construction project of size and scope and any necessary assistants. Appointment, removal and substitution of the Contractor’s project manager and superintendent shall be subject to the written approval of DCAMM. The superintendent shall represent CONTRACTOR and all directions or notices given to the superintendent shall be binding on CONTRACTOR.

The superintendent shall give efficient supervision to the work, using his or her best skill and attention. The superintendent shall see that the work is of high quality and is carried out in accordance with the Contract. The superintendent shall establish all lines, level, and marks, if any, necessary to facilitate the operations of all concerned in such installation.

CONTRACTOR shall establish an emergency telephone number by which CUSTOMER or respective agents may contact the superintendent during non-working hours. CUSTOMER shall have the right to halt the Installation Services without liability for any delays incurred while the required superintendent is not present on the Site, while work is being performed by CONTRACTOR or its Subcontractors.

7.4 CORI Checks for Contractor’s and Subcontractors’ Employees. If requested by DCAMM, CONTRACTOR shall submit information proving acceptable criminal background for all employees, agents and Subcontractors’ employees and agents.

7.5 Tool Inventory and Other Entry Procedures. If set forth in SCHEDULE B:

INSTALLATION SERVICES, CONTRACTOR shall follow all Tool Inventory and other procedures for entry and/or exit of the Premises. Any delays due to application of such procedures shall not entitle the CONTRACTOR to an equitable adjustment of the Total Contract Value and/or extension of time in accordance with the Contract.

Section 8 Location and Access

8.1 CONTRACTOR Access. CONTRACTOR acknowledges that there exists sufficient space on the Premises for the installation and operation of the New Equipment/Systems. CUSTOMER shall take reasonable steps to protect such New Equipment/Systems from harm, theft and misuse during the Contract Term. With reasonable notice, CUSTOMER shall provide access to the Premises for CONTRACTOR to perform any Services related to the Contract during regular business hours, or such other reasonable hours as may be requested by CONTRACTOR and acceptable to CUSTOMER. CONTRACTOR shall be granted immediate access to make emergency repairs or corrections pursuant to Section 17.4.

8.2 CUSTOMER Access and Document Access.

a. CUSTOMER shall have access to inspect the work conducted on the

Premises at all times during the Contract Term.

b. CUSTOMER shall have reasonable access to the books, records, and other compilations of data which pertain to the performance of the Services.

Records shall be kept in accordance with generally accepted accounting principles, and calculations kept on file in legible form. CUSTOMER shall provide CONTRACTOR with reasonable notice prior to exercising its rights under this subparagraph and CONTRACTOR shall be afforded a reasonable opportunity to make books, records and data available.

c. Pursuant to Executive Order 195, the Governor or his designee, the Secretary of Administration and Finance, and the State Auditor or his designee shall have the right at reasonable times and upon reasonable notice to examine the books, records, and other compilations of data of CONTRACTOR and all Subcontractors which pertain to the performance and requirements of the

8.3 Utility and Other Third Party Access. Upon request by any utility company providing FACILITY with services and/or providing incentives, interconnection of renewable energy generators, or other funding or work for the Project, FACILITY shall agree to allow such utility company (or other approved agent or third parties) to interview FACILITY and to enter the Premises at reasonable times throughout the life of the installed New Equipment/Systems to install metering equipment, perform energy and water audits or inspect the Premises and any New Equipment/Systems installed. CONTRACTOR also agrees to cooperate with such utility company (or its agent or third party) upon request and with prior consent of FACILITY (such consent not to be unreasonably withheld), in conducting such activities and/or in analyzing energy and water savings. At all times a representative of FACILITY (or its agent) shall be present during such inspections.

8.4 CONTRACTOR Site Office. FACILITY shall provide adequate space on the

Premises for CONTRACTOR’s office trailer and lay down space and necessary storage as detailed in Schedule B-4: Requirements for Resident Engineer and Field Offices. CONTRACTOR shall be responsible for any connections and payment of temporary utilities, including but not limited to telephone, internet, and electric. Upon completion of construction, the office location shall be restored by CONTRACTOR to its original condition.

8.5 CUSTOMER Field Office. An office shall be provided for DCAMM as detailed in

Schedule B-4: Requirements for Resident Engineer and Field Offices.

CONTRACTOR shall be responsible for any connections and payment of temporary utilities including, but not limited to, telephone and electric. Upon completion of construction, the Premises shall be restored by CONTRACTOR to its original condition.

Section 9 Salvage Value.

CUSTOMER reserves the right to salvage any Existing Equipment/Systems or materials replaced by CONTRACTOR, provided that no utility incentive program prohibits said salvage.

If CUSTOMER does not notify CONTRACTOR in writing five days prior to the commencement of Installation Services of its intent to salvage such Existing Equipment/Systems, then CONTRACTOR shall have the rights to salvage.

Section 10 Temporary Utilities.

CONTRACTOR must maintain Standards of Comfort at the Premises at all times, unless otherwise approved by CUSTOMER. CONTRACTOR shall provide for proper notification, temporary utilities, and other measures to ensure that the Standards of Comfort outlined in Section 33 are maintained at the Premises.

Section 11 Damages Caused by CONTRACTOR.

CONTRACTOR shall repair and restore to its original condition any area of damage caused by CONTRACTOR’s performance under the Contract. CUSTOMER reserves the right to review the work performed by CONTRACTOR and to direct CONTRACTOR to take certain corrective action if, in the opinion of CUSTOMER, the structural integrity of the Premises or its operating system is or will be harmed. All costs associated with such corrective action caused by CONTRACTOR’s breach of its obligations under the Contract shall be borne by CONTRACTOR. All construction and installation by CONTRACTOR shall be in compliance with applicable building, fire and other codes in existence as of the date of the Contract.

Section 12 Installation Commencement and Progress

12.1 Commencement of the Installation Services. CONTRACTOR shall commence

Installation Services in accordance with the Construction Schedule submitted by CONTRACTOR and approved by CUSTOMER. Any change to the Construction Schedule that impacts the projected Final Project Notification Approval Date must be followed by a submission in accordance with Section 24 of the Contract. Such submission may set forth a change to time only with no change to the Total Contract Value.

12.2 Schedule in accordance with Work Hour Restrictions. CONTRACTOR’s approved Construction Schedule shall be submitted with any and all entry/inventory requirements (Schedule B-1: Scope of Services Summary) and Work Hour Restrictions (Schedule B-2: Permitted Work Hours for Facility) considered. No Change Order or extension of the Contract Term shall be granted due to delays caused by CONTRACTOR’s failure to adhere to entry/inventory requirements or Work Hour Restrictions. If second or third shift or other off-hour work is required, such work shall be included in the Total Contract Value and CONTRACTOR shall not be granted an equitable adjustment to the Total Contract Value due to off-hour work unless not contemplated by work hour restrictions or entry/inventory procedures.

12.3 Sequence and Scheduling. The sequence and scheduling of the Installation Services is subject at all times to CUSTOMER approval, such approval not to be unreasonably withheld. CUSTOMER may interrupt or postpone work whenever concerns for safety or operations require it. Otherwise, the Installation Services shall proceed in accordance with the Construction Schedule. Security shall be provided by CUSTOMER as needed at CUSTOMER’s cost if shifts requiring security are upon the request of CUSTOMER. Additional security costs required by CONTRACTOR’s schedule shall be borne by CONTRACTOR.

12.4 Project Meetings. CONTRACTOR shall schedule weekly meetings of CONTRACTOR and CUSTOMER to review progress on each ECM, agree on any redirection, ensure that good workmanship is maintained, coordinate any CUSTOMER activity with the Construction Schedule, and otherwise maintain quality control. CONTRACTOR shall take minutes of each meeting in a manner acceptable to CUSTOMER and shall distribute such minutes to all attendees and any other persons agreed upon by the parties no later than five (5) calendar days prior to the next scheduled meeting. CUSTOMER shall have at least five (5) calendar days to make corrections to minutes. Such corrections shall be deemed accepted by CONTRACTOR unless objections are provided to CUSTOMER in writing within three

(3) calendar days of CUSTOMER’s distribution of corrections.

12.5 Reporting Progress of the Installation Services.

a. Construction/Installation Schedule. CONTRACTOR shall perform the Installation Services in accordance with SCHEDULE B: INSTALLATION SERVICES , unless otherwise agreed to by CUSTOMER.

b. Periodic Estimates/Schedule Updates.

(i) CONTRACTOR shall, on a monthly basis, submit to DCAMM (on forms and in the manner prescribed by DCAMM) an estimate showing the total amount of New Equipment/Systems installed to the time of such estimate and the value thereof as approved by DCAMM. It shall be the sole responsibility of CONTRACTOR to deliver or cause to be delivered to DCAMM said periodic estimate in proper form, approved as provided above and mathematically correct. All periodic estimates shall contain such certifications and other evidence supporting CONTRACTOR's progress with the Installation Services. DCAMM’s review of the periodic estimate is intended to be for verification of the status of the Installation Services and does not constitute acceptance of the Installation Services or any payment or other obligations of CUSTOMER, unless otherwise provided for in Schedule B-3:

Payment Terms.

(ii) Each periodic estimate shall constitute CONTRACTOR's representation that the materials, supplies and New Equipment/Systems have been installed and are insured in accordance with the provisions of the Contract.

(iii) DCAMM may make reasonable changes in any required periodic estimate submitted by CONTRACTOR.

(iv) DCAMM shall not be obligated to make progress payments for the amount of Services included in the periodic estimates.

(v) CONTRACTOR’s failure to provide the periodic estimates required in this Section may constitute an event of default under the provisions of the Contract.

c. Certified Payroll. CONTRACTOR shall furnish weekly certified payroll reports to DCAMM electronically via DCAMM’s electronic workforce reporting system at no additional expense to DCAMM. CONTRACTOR further agrees to include a provision in all of its subcontracts for the Services that require all Subcontractors furnishing labor during the Contract Term to also electronically provide certified payroll reports at DCAMM’s request at no additional expense to DCAMM. DCAMM may at all reasonable times audit such reports.

Section 13 Notice of Deficiencies in Existing Equipment/Systems Subsequent to

Commencement of Installation Services.

13.1 If prior to or during the performance of the Installation Services, either party is aware or becomes aware of any deficiencies in the Existing Equipment/Systems or in the Basis of Design that were not previously noted in APPENDIX A: REFERENCE DOCUMENTS or SCHEDULE B: INSTALLATION SERVICES, and not identified pursuant to Section 6.4 herein, that will cause a material change in the design and/or other Installation Services not previously identified by CUSTOMER in the RFP, the CONTRACTOR in its Proposal or by either party in the Contract or Contract Documents, that may: (1) prevent CONTRACTOR from completing the Installation Services as set forth in SCHEDULE B: INSTALLATION SERVICES; (2) prevent the New Equipment/Systems from meeting the Standards of Comfort specified in Section 33; (3) prevent the New Equipment/Systems from meeting the estimated Energy Savings in Schedule C-4: Energy Savings; and/or (4) may prevent CONTRACTOR from meeting any other requirements under the Contract, then the party that became aware of such deficiencies shall provide immediate written notice to the other of such deficiencies.

13.2 The notice of such deficiencies in the Existing Equipment/Systems shall include specific detail regarding the nature of the deficiencies and recommendations for the correction thereof in order to meet the contractual requirements. Upon receipt of notice of deficiencies, CONTRACTOR and CUSTOMER shall determine what, if any, deficiencies to the Existing Equipment/Systems are caused by the New Equipment/Systems installed by CONTRACTOR. To the extent that it is determined and agreed by the parties that such deficiencies in the Existing Equipment/Systems are caused by New Equipment/Systems installed by CONTRACTOR under the Contract, and that the CUSTOMER was not notified of such deficiencies pursuant to

Section 6.4, then CONTRACTOR shall replace, modify, alter or repair such New Equipment/Systems to CUSTOMER's satisfaction at no additional cost to CUSTOMER, subject to Section 24 of the Contract. To the extent that the parties cannot reach an agreement on the impact of any such deficiencies in accordance with Section 24 of the Contract, then the dispute shall be resolved in accordance with Section 24 and Section 40 of the Contract.

Section 14 Modification of Schedules to Reflect “As-Built” Conditions.

CONTRACTOR shall re-validate or modify the SCHEDULE A: DESIGN, SCHEDULE B:

INSTALLATION SERVICES, and SCHEDULE C: POST-INSTALLATION as appropriate to reflect “as-built” conditions for all ECMs. The provision of such “as-builts” is a condition of CUSTOMER’s Final Project Notification Approval of the Installation Services.

Section 15 Delays in the Installation Services.

a. Notwithstanding any provision of the Contract to the contrary, except as otherwise provided by law, CONTRACTOR shall not be entitled to additional compensation under the Contract or to receive damages on account of any hindrances or delays, avoidable or unavoidable; but if any delay is excusable in the reasonable opinion of CUSTOMER, CONTRACTOR shall be entitled to an extension of time for the Contract Term and the Construction Schedule.

The length of the extension shall be sufficient in the opinion of CUSTOMER for CONTRACTOR to complete the Installation Services. Although no delay shall increase the Total Contract Value, DCAMM may require that any change in the date by which CONTRACTOR must complete all or any part of the Installation Services be processed on a DCAMM standard Change Order form as set forth in Section 24 and in Schedule B-10: Instructions/Model Forms for Submission of Project Change Requests.

b. DCAMM may order CONTRACTOR in writing to suspend, delay, or interrupt all or any part of the Services for such period of time as it may determine to be appropriate for the convenience of CUSTOMER, provided, however, that if there is a suspension, delay or interruption for fifteen (15) calendar days or more or due to a failure of CUSTOMER to act within the time specified in the Contract, CUSTOMER shall make an adjustment in the Total Contract Value for any increase in the cost of performance of the Contract and for any documented “open-book” increase in the financing costs (as provided in the Total Contract Value spreadsheet in Schedule B-3: Payment Terms) incurred by CONTRACTOR in the performance of the Contract, but said adjustment shall not include any profit to CONTRACTOR on such increase;

and provided further, that DCAMM shall not make any adjustment in the Total Contract Value under this provision for any suspension, delay, interruption or failure to act to the extent that such is due to any cause for which the Contract provides for an equitable adjustment of the Total Contract Value under any other provisions of the Contract. CUSTOMER may require that any agreed upon adjustment in compensation due to CONTRACTOR under the terms of the Contract be processed in accordance with the DCAMM standard Change Order forms as set forth in Section 24 and in Schedule B-10:

Instructions/Model Forms for Submission of Project Change Requests.

c. For any compensation sought by CONTRACTOR pursuant to this Section 15, CONTRACTOR shall submit the amount of a claim under Section 40 to CUSTOMER in writing as soon as practicable after the end of the suspension, delay, interruption or failure to act and, in any event, not later than the date of CONTRACTOR’s request for Final Project Notification under the Contract and, except for costs due to a suspension order, CUSTOMER shall not approve any costs in the claim incurred more than thirty (30) calendar days before CONTRACTOR notified CUSTOMER in writing of the act or failure to act involved in the claim.

Section 16 Modification/Alteration of New Equipment/Systems and Interference with

Existing Equipment/Systems

16.1 Accessory New Equipment/Systems. During the Contract Term, CUSTOMER shall not, without the prior written consent of CONTRACTOR, affix or install any accessory equipment or device on any of the New Equipment/Systems installed by CONTRACTOR if such addition will change or impair the originally intended functions, value or use of the New Equipment/Systems without CONTRACTOR’s prior written approval, which shall not be unreasonably withheld.

16.2 New Equipment/Systems Installed By CONTRACTOR.

a. During the Contract Term, CUSTOMER shall not significantly move, remove, modify, alter, or change in any way the New Equipment/Systems or any part thereof, without the prior written approval of CONTRACTOR. Notwithstanding the foregoing, CUSTOMER may take reasonable steps to protect the New Equipment/Systems if, due to an emergency, it is not possible or reasonable to notify CONTRACTOR before taking any such actions. In the event of such an emergency, CUSTOMER shall take reasonable steps to protect the New Equipment/Systems from damage or injury.

b. CONTRACTOR shall at all times during the Contract Term have the right, subject to…