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Phase II Salina WWTP - Agreement with exhibits STANDARD FORM OF AGREEMENT BETWEEN OWNER AND DESIGN- BUILDER - COST PLUS FEE WITH GUARANTEED MAXIMUM PRICE Modified Document No. 530 Second Edition 2010 © Design-Build Institute of America Washington, DC TABLE OF CONTENTS Article Name Page Article 1 Scope of Work ............................................................................................... 2 Article 3 Interpretation and Intent ................................................................................ 2 Article 4 Ownership of Work Product ........................................................................... 3 Article 5 Contract Time ................................................................................................ 4 Article 6 Contract Price ................................................................................................ 5 Article 7 Procedure for Payment ................................................................................. 9 Article 8 Termination for Convenience ...................................................................... 10 Article 9 Representatives of the Parties .................................................................... 11 Article 10 Bonds and Insurance ................................................................................. 12 Article 11 Other Provisions ......................................................................................... 12 Modified DBIA Document No. 530 Page 1 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with a Guaranteed Maximum Price This AGREEMENT is made as of the 24th day of January in the year of 2023, by and between the following parties, for services in connection with the Project identified below: OWNER: City of Salina, Kansas 300 West Ash Salina, Kansas 67401 DESIGN-BUILDER: Overland Contracting Inc. 11401 Lamar Overland Park, Kansas, 66211 PROJECT: City of Salina Wastewater Treatment Plant Improvement Project 596 N Marymount Road Salina, Kansas 67401 In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder agree as set forth herein. Modified DBIA Document No. 530 Page 2 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America Article 1 Scope of Work 1.1 Design-Builder shall perform all design and construction services, and provide all material, equipment, tools and labor, necessary to complete the Work described in and reasonably inferable from the Contract Documents. Article 2 Contract Documents 2.1 The Contract Documents are comprised of the following: 2.1.1 All written modifications, amendments, minor changes, and Change Orders to this Agreement issued in accordance with DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2010 Edition), as modified (“General Conditions of Contract”); 2.1.2 The GMP Exhibit (Exhibit A), referenced in Section 6.6.1.1 herein, and including the following; · Design-Builder’s GMP Proposal · 90 percent Design Drawings · 90 percent Design Specifications · Basis of Design Report, dated 05/11/21, as approved by KDHE, and as described in the Design-Builder’s GMP Proposal Provided, however, that in the event of a conflict between the 90 percent Design Drawings or 90 percent Design Specifications and the Final Basis of Design Report as approved by KDHE, the 90 percent Design Drawings or 90 percent Design Specifications shall control. 2.1.3 This Agreement, including all exhibits: · Performance Bond (Exhibit B) · Payment Bond meeting the requirements of a Kansas Statutory Payment Bond (Exhibit B) · KDHE Required Contract Provisions (Exhibit C) · Allowances (Exhibit D) · Rates & Markups (Exhibit E) · Insurance & Surety Requirements (Exhibit F) 2.1.4 The General Conditions of Contract; and 2.1.5 Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract. Article 3 Interpretation and Intent 3.1 Design-Builder and Owner, prior to execution of the Agreement, shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents, for any Modified DBIA Document No. 530 Page 3 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement. 3.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event inconsistencies, conflicts, or ambiguities between or among the Contract Documents are discovered after execution of the Agreement, or if applicable, after Owner’s acceptance of the GMP Proposal, Design-Builder and Owner shall attempt to resolve any ambiguity, conflict or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof. 3.3 Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract. 3.4 [Intentionally Deleted] 3.5 The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents. Article 4 Ownership of Work Product 4.1 Work Product. All drawings, specifications and other documents and electronic data, including such documents identified in the General Conditions of Contract, furnished by Design-Builder to Owner under this Agreement (“Work Product”) are deemed to be instruments of service and Design-Builder shall retain the ownership and property interests therein, including but not limited to any intellectual property rights, copyrights and/or patents, subject to the provisions set forth in Sections 4.2 through 4.5 below. 4.2 Owner’s License upon Project Completion and Payment in Full to Design-Builder. Upon Owner’s payment in full for all Work performed under the Contract Documents, Design-Builder transfers to Owner all ownership and property interests, including but not limited to any intellectual property rights, copyrights and/or patents, in the Work Product. Such transfer is conditioned on Owner’s express understanding that its alteration of the Work Product without the involvement of Design-Builder is at Owner’s sole risk and without liability or legal exposure to Design-Builder or anyone working by or through Design- Builder, including Design Consultants of any tier (collectively the “Indemnified Parties”), and on the Owner’s obligations to provide the indemnity set forth in Section 4.5 below. 4.3 Owner’s Limited License upon Owner’s Termination for Convenience or Design-Builder’s Election to Terminate. If Owner terminates this Agreement for its convenience as set forth in Article 8 hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the General Conditions of Contract, Design-Builder shall, upon Owner’s payment in full of the amounts due Design-Builder under the Contract Documents, grant Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights as set forth in Section 4.2 above, conditioned on the following: 4.3.1 Use of the Work Product is at Owner’s sole risk without liability or legal exposure to any Indemnified Party, and on the Owner’s obligation to provide the indemnity set forth in Section 4.5 below. 4.3.2 [Intentionally Deleted] Modified DBIA Document No. 530 Page 4 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America 4.4 Owner’s Limited License upon Design-Builder's Default. If this Agreement is terminated due to Design-Builder's default pursuant to Section 11.2 of the General Conditions of Contract, then Design- Builder grants Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section 4.2 above. Notwithstanding the preceding sentence, if it is ultimately determined that Design-Builder was not in default, Owner shall be deemed to have terminated the Agreement for convenience, and Design- Builder shall be entitled to the rights and remedies set forth in Section 4.3 above. 4.5 Owner’s Indemnification for Use of Work Product. If Owner is required to indemnify any Indemnified Parties based on the use or alteration of the Work Product under any of the circumstances identified in this Article 4, Owner shall defend, indemnify and hold harmless such Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses, including attorneys’ fees, arising out of or resulting from the use or alteration of the Work Product. Article 5 Contract Time 5.1 Date of Commencement. The Work shall commence within five (5) days of Design-Builder’s receipt of Owner’s Notice to Proceed (“Date of Commencement”) unless the parties mutually agree otherwise in writing. 5.2 Substantial Completion and Final Completion. 5.2.1 Substantial Completion of the entire Work shall be achieved no later than One Thousand and Nineteen (1019) calendar days after the Date of Commencement (“Scheduled Substantial Completion Date”). 5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work (“Scheduled Interim Milestone Dates”) shall be achieved as follows: 1. The Ferric Chloride Dosing System, to provide Chemically Enhanced Primary Treatment and Chemical Phosphorus Removal, shall be constructed and ready to be placed into service by July 11, 2024 2. The three Biological Nutrient Removal Basins and associated air delivery systems shall be constructed and ready to be placed into service by June 11, 2025 5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Section 1.2.7 of the General Conditions of Contract. 5.2.4 All of the dates set forth in this Article 5 (collectively the “Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract. 5.3 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents. 5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not attained by the Scheduled Substantial Completion Date (the “LD Date”), Design-Builder shall pay Owner one thousand five hundred Dollars ($1,500) up to a maximum aggregate amount of five percent (5%) of the Contract Price, as liquidated damages for each day that Substantial Completion extends beyond the LD Date. Modified DBIA Document No. 530 Page 5 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America Design-Builder understands that if Final Completion is not achieved within 90 days of the Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design- Builder agrees that if Final Completion is not achieved within 90 days of Substantial Completion, Design- Builder shall pay to Owner five hundred Dollars ($500) up to a maximum aggregate amount of five percent (5%) of the Contract Price, as liquidated damages for each calendar day that Final Completion is delayed beyond the above-referenced number of days. 5.5 Any liquidated damages assessed pursuant to this Agreement shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties and any other damages, whether special or consequential, and of whatsoever nature, incurred by Owner which are occasioned by any delay in achieving the Contract Time(s). The liquidated damages set forth for Substantial Completion and Final Completion above are not intended to be duplicative, in that only one liquidated damage amount will apply to any given period of time. In the event that two or more liquidated damage amounts could apply to the same period of time, the highest applicable liquidated damage will apply. 5.6 [Intentionally Deleted] 5.7 [Intentionally Deleted] Article 6 Contract Price 6.1 Contract Price. 6.1.1 Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract a contract price (“Contract Price”) equal to Design-Builder’s Fee (as defined in Section 6.2 hereof) plus the Cost of the Work (as defined in Section 6.3 hereof), subject to any GMP established in Section 6.6 hereof and any adjustments made in accordance with the General Conditions of Contract. 6.1.2 [Intentionally Deleted] 6.2 Design-Builder’s Fee. 6.2.1 Design-Builder’s Fee shall be: Two Million, Two Hundred and Twenty Three Thousand, Six Hundred and Seventeen Dollars ($ 2,223,617), as adjusted in accordance with Section 6.2.2 below. 6.2.2 Design-Builder’s Fee will be adjusted as follows for any changes in the Work: 6.2.2.1 For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of Six percent (6.0%) of the additional Costs of the Work incurred for that Change Order, plus any other markups set forth in Exhibit E hereto. 6.2.2.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include: An amount equal to the sum of: (a) Six percent (6.0 %) applied to the direct costs of the net reduction (which amount will account for a reduction associated with Design-Builder’s Fee); plus (b) any other markups set forth in Exhibit E hereto applied to the direct costs of the net reduction. Modified DBIA Document No. 530 Page 6 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America 6.3 Cost of the Work. The term Cost of the Work shall mean costs reasonably and actually incurred by Design-Builder in the proper performance of the Work. The Cost of the Work shall include only the following: 6.3.1 Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner’s agreement, at locations off the Site; provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable, those rates set forth in an exhibit to this Agreement. 6.3.2 Wages or salaries of Design-Builder’s supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working off-Site to assist in the production or transportation of material and equipment necessary for the Work, paid at rates to include project-related overhead associated with such personnel, set out in Exhibit E 6.3.3 Wages or salaries of Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, but only to the extent said personnel are identified in Exhibit E and performing the function set forth in said Exhibit, paid at rates to include project-related overhead associated with such personnel, set out in Exhibit 6.3.4 Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Sections 6.3.1 through 6.3.3 hereof. 6.3.5 The reasonable portion of the cost of travel, accommodations and meals for Design- Builder’s personnel necessarily and directly incurred in connection with the performance of the Work. 6.3.6 Payments properly made by Design-Builder to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants. 6.3.7 Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work (including any warranty or corrective Work performed after Substantial Completion), provided that such Work was beyond the reasonable control of Design-Builder, or caused by the ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or those working by or through Design-Builder. If the costs associated with such Work are recoverable from insurance, Subcontractors or Design Consultants, Design-Builder shall exercise its best efforts to obtain recovery from the appropriate source and provide a credit to Owner if recovery is obtained. 6.3.8 Costs, including transportation, inspection, testing, storage and handling, of materials, equipment and supplies incorporated or reasonably used in completing the Work. 6.3.9 Costs (less salvage value) of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design-Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining, dismantling and removing such items. 6.3.10 Costs of removal of debris and waste from the Site. 6.3.11 The reasonable costs and expenses incurred in establishing, operating and demobilizing the Site office, including the cost of facsimile transmissions, long-distance telephone calls, postage and express delivery charges, telephone service, photocopying and reasonable petty cash expenses. Modified DBIA Document No. 530 Page 7 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America 6.3.12 Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others, and incurred in the performance of the Work. 6.3.13 Premiums for insurance and bonds required by this Agreement or the performance of the Work. 6.3.14 All fuel and utility costs incurred in the performance of the Work. 6.3.15 Sales, use or similar taxes, tariffs or duties incurred in the performance of the Work. 6.3.16 Legal costs, court costs and costs of mediation and arbitration reasonably arising from Design-Builder’s performance of the Work, provided such costs do not arise from disputes between Owner and Design-Builder. 6.3.17 Costs for permits, royalties, licenses, tests and inspections incurred by Design-Builder as a requirement of the Contract Documents. 6.3.18 The cost of defending suits or claims for infringement of patent rights arising from the use of a particular design, process, or product required by Owner, paying legal judgments against Design-Builder resulting from such suits or claims, and paying settlements made with Owner’s consent. 6.3.19 Deposits which are lost, except to the extent caused by Design-Builder’s negligence. 6.3.20 Costs incurred in preventing damage, injury or loss in case of an emergency affecting the safety of persons and property. 6.3.21 Accounting and data processing costs related to the Work. 6.3.22 Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner. 6.4 Allowance Items and Allowance Values. 6.4.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in the GMP Exhibit and are included within the GMP. 6.4.2 Design-Builder and Owner have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design-Builder and Owner will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value. 6.4.3 No work shall be performed on any Allowance Item without Design-Builder first obtaining in writing advanced authorization to proceed from Owner. Owner agrees that if Design-Builder is not provided written authorization to proceed on an Allowance Item by the date set forth in the Project schedule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price. 6.4.4 The Allowance Value for an Allowance Item includes the direct cost of labor, materials, equipment, transportation, taxes, bonds and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design-Builder’s overall project management and Modified DBIA Document No. 530 Page 8 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America general conditions costs, overhead and fee, are deemed to be included in the original Contract Price, and are not subject to adjustment, regardless of the actual amount of the Allowance Item. 6.4.5 Whenever the actual costs for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjusted accordingly by Change Order, subject to Section 6.4.4. The amount of the Change Order shall reflect the difference between actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value. 6.5 Non-Reimbursable Costs. 6.5.1 The following shall not be deemed as costs of the Work: 6.5.1.1 Compensation for Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, except as provided for in Sections 6.3.1, 6.3.2 and 6.3.3 hereof. 6.5.1.2 Overhead and general expenses, except as provided for in Section 6.3 hereof, or which may be recoverable for changes to the Work. 6.5.1.3 The cost of Design-Builder’s capital used in the performance of the Work. 6.5.1.4 If the parties have agreed on a GMP, costs that would cause the GMP, as adjusted in accordance with the Contract Documents, to be exceeded. 6.6 The Guaranteed Maximum Price (“GMP”). 6.6.1 GMP Established Upon Execution of this Agreement. 6.6.1.1 Design-Builder guarantees that it shall not exceed the GMP of Thirty-Seven Million, Seventy-Five Thousand, Five Hundred and Thirty Three Dollars ($37,075,533.00). Documents used as basis for the GMP shall be identified as an exhibit to this Agreement (“GMP Exhibit”). Design-Builder does not guarantee any specific line item provided as part of the GMP Design-Builder agrees that it will be responsible for paying all costs of completing the Work which exceed the GMP, as said GMP may be adjusted in accordance with the Contract Documents. 6.6.1.2 The GMP includes a Contingency in the amount of Two Million, Nine Hundred and Sixty-Five Thousand, Two Hundred and Sixty-Seven Dollars ($2,965,267.00) which is available for Design-Builder’s exclusive use for unanticipated costs it has incurred that are not the basis for a Change Order under the Contract Documents. By way of example, and not as a limitation, such costs may include: (a) trade buy-out differentials; (b) overtime or acceleration; (c) escalation of materials; (d) correction of defective, damaged or nonconforming Work, design errors or omissions, however caused; (e) Subcontractor defaults; or (f) those events under Section 8.2.2 of the General Conditions of Contract that result in an extension of the Contract Time but do not result in an increase in the Contract Price. The Contingency is not available to Owner for any reason, including, but not limited to changes in scope or any other item which would enable Design-Builder to increase the GMP under the Contract Documents. Design-Builder shall provide Owner notice of all anticipated charges against the Contingency, and shall provide Owner as part of the monthly status report required by Section 2.1.2 of the General Conditions of Contract an accounting of the Contingency, including all reasonably foreseen uses or potential uses of the Contingency in the upcoming three (3) months. Design-Builder agrees that with respect to any expenditure from the Contingency relating to a Subcontractor default or an event for which insurance or bond may provide reimbursement, Design-Builder will in good faith exercise reasonable steps to obtain performance from the Subcontractor and/or recovery from any surety or insurance company. Design-Builder agrees that if Design-Builder is subsequently reimbursed for said costs, then said recovery will be credited back to the Contingency. Modified DBIA Document No. 530 Page 9 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America 6.6.2 [Intentionally Deleted] 6.6.3 Savings. 6.6.3.1 If the sum of the actual Cost of the Work and Design-Builder’s Fee is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference (“Savings”) shall be shared as follows: Sixty five percent (65%) to Design-Builder and thirty five percent (35%) to Owner. 6.6.3.2 Savings shall be calculated and paid as part of Final Payment under Section 7.3 hereof, with the understanding that to the extent Design-Builder incurs costs after Final Completion which would have been payable to Design-Builder as a Cost of the Work, the parties shall recalculate the Savings in light of the costs so incurred, and Design-Builder shall be paid by Owner accordingly 6.7 [Intentionally Deleted] Article 7 Procedure for Payment 7.1 Progress Payments. 7.1.1 Design-Builder shall submit to Owner on the twenty-fifth (25th) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract. 7.1.2 Owner shall make payment within thirty (30) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract. 7.1.3 If Design-Builder’s Fee under Section 6.2.1 hereof is a fixed amount, the amount of Design- Builder’s Fee to be included in Design-Builder’s monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder’s Fee. 7.2 Retainage on Progress Payments. 7.2.1 Owner will retain ten percent (10%) of each Application for Payment provided, however, that when fifty percent (50%) of the Work has been satisfactorily completed by Design-Builder and Design-Builder is otherwise in compliance with its contractual obligations, Owner will not retain any additional retention amounts from Design-Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Subcontractors completing their work early in the Project. 7.2.2 Within fifteen (15) days after Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to: (a) the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion; and (b) all other Modified DBIA Document No. 530 Page 10 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America amounts Owner is entitled to withhold pursuant to Section 6.3 of the General Conditions of Contract. 7.3 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design- Builder’s properly submitted and accurate Final Application for Payment (less any amount the parties may have agreed to set aside for warranty work) within thirty (30) days after Owner’s receipt of the Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract. 7.4 Interest. Payments due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall bear interest commencing five (5) days after payment is due at the rate of one-half percent (1.5%) per month until paid. 7.5 Record Keeping and Finance Controls. Design-Builder acknowledges that this Agreement is to be administered on an “open book” arrangement relative to Costs of the Work. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded access to, and the right to audit from time-to-time, upon reasonable notice, Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment. Such inspection shall take place at Design-Builder’s offices during normal business hours unless another location and time is agreed to by the parties. Any multipliers or markups agreed to by the Owner and Design- Builder as part of this Agreement are only subject to audit to confirm that such multiplier or markup has been charged in accordance with this Agreement, with the composition of such multiplier or markup not being subject to audit. Article 8 Termination for Convenience 8.1 Upon ten (10) days’ written notice to Design-Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following: 8.1.1 All Work executed and for proven loss, cost or expense, including without duplication, fair and reasonable overhead and profit on completed work, in connection with the Work; 8.1.2 The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants including without duplication, fair and reasonable overhead on such cost and expense. 8.1.3 [Intentionally Deleted] 8.2 [Intentionally Deleted] 8.3 If Owner terminates this Agreement pursuant to Section 8.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner’s rights to use the Work Product shall be as set forth in Section 4.3 hereof. Such rights may not be transferred or assigned to others without Design-Builder’s express written consent and such third parties’ agreement to the terms of Article 4. Modified DBIA Document No. 530 Page 11 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America Article 9 Representatives of the Parties 9.1 Owner’s Representatives. 9.1.1 Owner designates the individual listed below as its Senior Representative (“Owner Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: Name: Martha Tasker Title: Municipal Utilities Director Address: 300 West Ash Street, Salina, KS 67401 Telephone: 785-309-5725 Email: martha.tasker@salina.org 9.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract: Name: Martha Tasker Title: Municipal Utilities Director Address: 300 West Ash Street, Salina, KS 67401 Telephone: 785-309-5725 Email: martha.tasker@salina.org 9.2 Design-Builder’s Representatives. 9.2.1 Design-Builder designates the individual listed below as its Senior Representative (“Design-Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: Name: James Greenyer Title: Design Build Director Address: 11401 Lamar Ave, Overland Park, KS 66211 Telephone: 913 458 7375 E-mail: GreenyerJ@BV.com 9.2.2 Design-Builder designates the individual listed below as its Design-Builder’s Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract: Name: Scott Setter Title: Project Manager Address: 11401 Lamar Ave, Overland Park, KS 66211 Telephone: 913 458 3822 E-mail: SetterS@BV.com Modified DBIA Document No. 530 Page 12 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America Article 10 Bonds and Insurance 10.1 Insurance. Design-Builder and Owner shall procure the insurance coverages set forth in the Insurance Exhibit (Exhibit F) attached hereto and in accordance with Article 5 of the General Conditions of Contract. 10.2 Bonds and Other Performance Security. Design-Builder shall provide the following performance bond and labor and material payment bond or other performance security: Performance Bond. Required Not Required Payment Bond. Required Not Required Other Performance Security. Required Not Required Article 11 Other Provisions 11.1 [Intentionally deleted] 11.2 Assignment. Neither Design-Builder nor Owner shall without the written consent of the other party assign, transfer, or sublet any portion or part of its obligations under this Agreement, . 11.3 Governing Law. This Agreement shall be governed by the laws of the place of the Project, without giving effect to its conflict of law principles. 11.4 Severability. If any provision or any part of a provision of this Agreement shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to applicable laws by any authority having jurisdiction, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provisions or parts of the provision of this Agreement, which shall remain in full force and effect as if the unenforceable provision or part was deleted. 11.5 Amendments. This Agreement may not be changed, altered, or amended in any way except in writing signed by a duly authorized representative of both parties. 11.6 Entire Agreement. This Agreement forms the entire agreement between Owner and Design- Builder. No oral representations or other agreements have been made by the parties except as specifically stated in this Agreement. Modified DBIA Document No. 530 Page 13 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America 11.711.7.1 Non-appropriation. Owner is subject to Kansas budget and cash basis laws, and operates on a calendar fiscal year. In the event that this Agreement involves financial obligations spanning multiple fiscal years for Owner, it is subject to annual appropriation by Owner’s governing body for future fiscal years. If Owner’s governing body does not appropriate the funds necessary to fulfill Owner’s financial obligations pursuant to this Agreement, Owner shall so notify the other parties to this Agreement and this Contract shall be null and void for purposes of the fiscal year(s) affected by the decision of the governing body not to appropriate. 11.77.2 Equal Opportunity State of Kansas SRF Provisions (a) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. (b) The contractor will, in all solicitations or advancements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. (c) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (d) The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (e) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (f) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (g) The contractor will include the provisions of paragraphs (a) through (g) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of Modified DBIA Document No. 530 Page 14 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America the United States." [Sec. 202 amended by EO 11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684, EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] 11.7.3 City of Salina Provisions (a) In conformity with the Kansas act against discrimination and Chapter 13 of the Salina Code, Design-Builder and its subcontractors, if any, agree that: (1) Design-Builder shall observe the provisions of the Kansas act against discrimination and Chapter 13 of the Salina Code and in doing so shall not discriminate against any person in the performance of work under this Agreement because of race, sex, religion, age, color, national origin, ancestry or disability; (2) Design-Builder shall include in all solicitations, or advertisements for employees, the phrase “equal opportunity employer,” or a similar phrase to be approved by Owner’s human relations director; (3) If Design-Builder fails to comply with the manner in which Design-Builder reports to the Kansas human rights commission in accordance with the provisions of K.S.A. 44-1031 and amendments thereto, Design-Builder shall be deemed to have breached this Agreement and it may be canceled, terminated or suspended, in whole or in part, by Owner; (4) If Design-Builder is found guilty of a violation of Chapter 13 of the Salina Code or the Kansas act against discrimination under a decision or order of the Salina human relations commission or the Kansas human rights commission which has become final, Design- Builder shall be deemed to have breached this Agreement and it may be canceled, terminated or suspended, in whole or in part, by Owner; (5) Design-Builder shall not discriminate against any employee or applicant for employment in the performance of this Agreement because of race, sex, religion, age, color, national origin, ancestry or disability; and (6) Design-Builder shall include similar provisions in any subcontract under this Agreement. 11.7.47.4 State of Kansas Act Against Discrimination (a) Except as provided by subsection (c), every contractor for or on behalf of the State and any county or municipality or other political subdivision of the State, or any agency of or authority created by any of the foregoing, for the construction, alteration, or repair of any public building or public work or for the acquisition of materials, equipment, supplies, or services shall contain provisions by which the contractor agrees that: (1) The contractor shall observe the provisions of the Kansas Act Against Discrimination and shall not discriminate against any person in the performance of work under the present contract because of race, religion, color, sex, disability, national origin, or ancestry; (2) In all solicitations or advertisements for employees, the contractor shall include the phrase “equal opportunity employer” or a similar phrase to be approved by the Commission; (3) If the contractor fails to comply with the manner in which the contractor reports to the Commission in accordance with the provisions of K.S.A.44-1031 and amendments thereto, the contractor shall be deemed to have breached the present contract and it may be cancelled, terminated, or suspended, in whole or in part, by the contracting agency; Modified DBIA Document No. 530 Page 15 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America (4) If the contractor is found guilty of a violation of the Kansas Act Against Discrimination under a decision or order of the Commission which has become final, the contractor shall be deemed to have breached the present contract and it may be cancelled, terminated or suspended, in whole, or in part, by the contracting agency; (5) The contractor shall include the provisions of subsections (a)(1) through (4) in every subcontract or purchase order so that such provisions will be binding upon such subcontractor or vendor. (b) The Kansas Human Rights Commission shall not be prevented hereby from requiring reports of contractors found to be not in compliance with the Kansas Act Against Discrimination. (c) The provisions of this section shall not apply to a contract entered into by a contractor: (1) Who employs fewer than four employees during the term of such contract; or (2) Whose contracts with the governmental entity letting such contract cumulatively total $5,000 or less during the fiscal year of such governmental entity. 11.7.57.5 Restrictions on Lobbying. The Contractor agrees to comply with Title 40 CRF Part 34, New Restrictions on Lobbying. A Certification form must be submitted with the bid documents. 11.7.67.6 Trafficking Victims Protection Act of 2000. The Contractor, its employees, sub- contractors, and sub-contractors employees under any KPWSLF Loan Agreement, may not engage in severe forms of trafficking in persons during the period of time that the award is in effect; procure a commercial sex act during the period of time that the award is in effect; or use forced labor in the performance of the award or sub-awards under the award. 11.7.77.7 Suspension and Debarment. The Contractor certifies that it is not suspended or debarred from participating in federal assistance and benefit programs and further agrees to fully comply with Subpart C of 2 CFR Part 180 and 2 CFR Part 1532, entitled “Responsibilities of Participants Regarding Transactions.” The Contractor must ensure that any lower tier covered transaction, as described in Subpart B of 2 CFR Part 180 and 2 CFR Part 1532, entitled “Covered Transactions,” includes a term or condition requiring compliance with Subpart C. The Contractor agrees that failing to disclose the required information in 2 CFR 180.335 may result in the delay or negation of this assistance agreement, or pursuance of legal remedies, including suspension and debarment. 11.7.87.8 Non Discrimination. The contractor must comply with Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and a variety of program-specific statutes with nondiscrimination requirements. Other civil rights laws may impose additional requirements on the contractor. These laws include, but are not limited to, Title VII of the Civil Rights Act of 1964 (prohibiting race, color, national origin, religion, and sex discrimination in employment), the Americans with Disabilities Act (prohibiting disability discrimination in employment and in services provided by State and local governments, businesses, and non-profit agencies), and the Fair Housing Act (prohibiting race, color, national origin, age, family status, and disability discrimination in housing), as well as any other applicable civil rights laws. 11.7.97.9 Non Segregated Facilities. The contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensuring that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. This obligation extends to all contracts containing the equal opportunity clause regardless of the amount of the contract. The term “facilities,” as used in this section, means waiting Modified DBIA Document No. 530 Page 16 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees; Provided, That separate or single-user restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes. 11.7.107.10 Insurance Requirements. (a) Types and Amount of Coverage. Design-Builder agrees to obtain insurance coverage as specified in Exhibit B, attached hereto, and shall not make any material modification or change from these specifications without the prior approval of Owner. If Design- Builder subcontracts any of its obligations under this Agreement, Design-Builder shall require each such subcontractor to obtain insurance coverage as specified in Exhibit B. Failure of Design-Builder or its subcontractors to comply with these requirements shall not be construed as a waiver of these requirements or provisions and shall not relieve Design-Builder of liability. (b) Rating. All insurance policies shall be issued by insurance companies rated no less than A- VII in the most recent “Bests” insurance guide, and admitted in the State of Kansas. Except as otherwise specified in Exhibit B, all such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. (c) Certificate of Insurance. Design-Builder shall provide Owner with a certificate of insurance listing Owner as the Certificate Holder and evidencing compliance with the insurance requirements in this Agreement. Owner reserves the right to request in writing and receive relevant (as determined by the Owner in its reasonable discretion) coverage form provisions and exclusion endorsements for the insurance policies required to be maintained by Design-Builder above for which Owner is included as an additional insured should a claim be filed against Owner that arises out of Design- Builder’s Work for the Project. 11.7.117.11 Limitation of Liability. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement except as set forth in this section, the total liability, in the aggregate, of Design- Builder, to Owner and anyone claiming by, through or under Owner, for any and all claims, losses, liabilities, costs, or damages whatsoever (“Losses”) arising out of or resulting from the Project or this Agreement from any cause, including but not limited to the negligence, indemnity, strict liability, breach of contract, or warranty (express or implied) shall not exceed an amount equal to one hundred seventy five (175%) of the Contract Price. Notwithstanding the foregoing, the limitation of liability contained in this section shall not apply to: (1) Design-Builder’s indemnification obligations under Section 7.1 of the General Conditions of Contract, for patent and copyright infringement; (2) Losses arising from Design-Builder’s intentional torts, unlawful conduct, gross negligence, or willful failure to perform its contract obligations; (3) liquidated damages to the extent provided for under the Contract Documents; and (4) Design-Builder’s obligation to pay reasonable attorneys’ fees and other reasonable litigation costs to the extent provided for under the Agreement.. 11.7.12 Remedies & Survival. Upon completion of the Work or termination of this Agreement for any reason whatsoever, provisions relating to indemnity, waivers and limitations of liability, including but not limited to those contained in this Section, shall remain in full force and effect. Modified DBIA Document No. 530 Page 17 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America Modified DBIA Document No. 530 Page 18 Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with GMP © 2010 Design-Build Institute of America In executing this Agreement, Owner and Design-Builder each individually represents that, subject to annual appropriation by Owner’s governing body, as set forth in Section 11.7.1, it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein. OWNER: DESIGN-BUILDER: Overland Contracting, Inc. (Name of Owner) (Name of Design-Builder) (Signature) (Signature) Charles Mitchell (Printed Name) (Printed Name) Vice President (Title) (Title) Date: Date: STANDARD FORM OF GENERAL CONDITIONS OF CONTRACT BETWEEN OWNER AND DESIGN-BUILDER Modified Document No. 535 Second Edition, 2010 © Design-Build Institute of America Washington, DC TABLE OF CONTENTS Article Name Page Article 1 General .......................................................................................................... 1 Article 2 Design-Builder’s Services and Responsibilities ............................................. 2 Article 3 Owner’s Services and Responsibilities .......................................................... 7 Article 4 Hazardous Conditions and Differing Site Conditions ..................................... 8 Article 5 Insurance and Bonds .................................................................................... 9 Article 6 Payment ...................................................................................................... 11 Article 7 Indemnification ............................................................................................ 13 Article 8 Time ............................................................................................................ 15 Article 9 Changes to the Contract Price and Time..................................................... 15 Article 10 Contract Adjustments and Disputes ............................................................ 17 Article 11 Stop Work and Termination for Cause ........................................................ 18 Article 12 Electronic Data ............................................................................................ 21 Article 13 Miscellaneous .............................................................................................. 22 DBIA Document No. 535 Page 1 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America Article 1 General 1.1 Mutual Obligations 1.1.1 Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents. 1.2 Basic Definitions 1.2.1 Agreement refers to the executed contract between Owner and Design-Builder under either DBIA Document No. 525, Standard Form of Agreement Between Owner and Design-Builder - Lump Sum (2010 Edition) or DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee with an Option for a Guaranteed Maximum Price (2010 Edition). 1.2.2 Basis of Design Documents are as follows: For DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee With an Option for a Guaranteed Maximum Price, the Basis of Design Documents are those documents specifically listed in, as applicable, the GMP Exhibit or GMP Proposal as being the “Basis of Design Documents.” For DBIA Document No. 525, Standard Form of Agreement Between Owner and Design-Builder – Lump Sum, the Basis of Design Documents are the Owner’s Project Criteria, Design-Builder’s Proposal and the Deviation List, if any. 1.2.3 Construction Documents are the documents, consisting of Drawings and Specifications, to be prepared or assembled by the Design-Builder consistent with the Basis of Design Documents unless a deviation from the Basis of Design Documents is specifically set forth in a Change Order executed by both the Owner and Design-Builder, as part of the design review process contemplated by Section 2.4 of these General Conditions of Contract. 1.2.4 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents. 1.2.5 Design-Build Team is comprised of the Design-Builder, the Design Consultant, and key Subcontractors identified by the Design-Builder. 1.2.6 Design Consultant is a qualified, licensed design professional who is not an employee of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder, to furnish design services required under the Contract Documents. A Design Sub-Consultant is a qualified, licensed design professional who is not an employee of the Design Consultant, but is retained by the Design Consultant or employed or retained by anyone under contract to Design Consultant, to furnish design services required under the Contract Documents. 1.2.7 Final Completion is the date on which all Work is complete in accordance with the Contract Documents, including but not limited to, any items identified in the punch list prepared under Section 6.6.1 and the submission of all documents set forth in Section 6.7.2. 1.2.8 Force Majeure Events are those events that are beyond the control of both Design-Builder and Owner, including the events of delays due to limited availability of materials, equipment, transportation, or work force, war, floods, labor disputes, earthquakes, epidemics, adverse weather conditions not reasonably anticipated, and other acts of God. 1.2.9 General Conditions of Contract refer to this DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2010 Edition). DBIA Document No. 535 Page 2 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America 1.2.10 GMP Exhibit means that exhibit attached to DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee With an Option for a Guaranteed Maximum Price, which exhibit will have been agreed upon by Owner and Design-Builder prior to the execution of the Agreement. 1.2.11 GMP Proposal means that proposal developed by Design-Builder in accordance with Section 6.6 of DBIA Document No. 530, Standard Form of Agreement Between Owner and Design- Builder - Cost Plus Fee With an Option for a Guaranteed Maximum Price. 1.2.12 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements. 1.2.13 Legal Requirements are all applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work. 1.2.14 Owner’s Project Criteria are developed by or for Owner to describe Owner’s program requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design- Builder’s performance of the Work. Owner’s Project Criteria may include conceptual documents, design criteria, design performance specifications, design specifications, and LEED® or other sustainable design criteria and other Project-specific technical materials and requirements. 1.2.15 Site is the land or premises on which the Project is located. 1.2.16 Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers. 1.2.17 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and suppliers. 1.2.18 Substantial Completion or Substantially Complete means the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes. 1.2.19 Work is comprised of all Design-Builder’s design, construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents. Article 2 Design-Builder’s Services and Responsibilities 2.1 General Services. 2.1.1 Design-Builder’s Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Design-Builder’s Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder’s Representative may be replaced only with the mutual agreement of Owner and Design-Builder. DBIA Document No. 535 Page 3 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America 2.1.2 Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work, including (i) whether the Work is proceeding according to schedule, (ii) whether discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) whether health and safety issues exist in connection with the Work; (iv) status of the contingency account to the extent provided for in the Standard Form of Agreement Between Owner and Design- Builder - Cost Plus Fee with an Option for a Guaranteed Maximum Price; and (v) other items that require resolution so as not to jeopardize Design-Builder’s ability to complete the Work for the Contract Price and within the Contract Time(s). 2.1.3 Unless a schedule for the execution of the Work has been attached to the Agreement as an exhibit at the time the Agreement is executed, Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated by Section 2.1.4 hereof, a schedule for the execution of the Work for Owner’s review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner’s review of, and response to, the schedule shall not be construed as relieving Design-Builder of its complete and exclusive control over the means, methods, sequences and techniques for executing the Work. 2.1.4 The parties will meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. 2.2 Design Professional Services. 2.2.1 Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant. 2.3 Standard of Care for Design Professional Services. 2.3.1 The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project. 2.4 Design Development Services. 2.4.1 Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim design submissions that Owner may wish to review, which interim design submissions may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. Interim design submissions shall be consistent with the Basis of Design Documents, as the Basis of Design Documents may have been changed through the design process set forth in this Section 2.4.1. On or about the time of the scheduled submissions, Design-Builder and Owner shall meet and confer about the submissions, with Design- Builder identifying during such meetings, among other things, the evolution of the design and any changes to the Basis of Design Documents, or, if applicable, previously submitted design submissions. Changes to the Basis of Design Documents, including those that are deemed minor changes under Section 9.3.1, shall be processed in accordance with Article 9. Minutes of the meetings, including a full listing of all changes, will be maintained by Design-Builder and provided to all attendees for review. Following the design review meeting, Owner shall review and approve DBIA Document No. 535 Page 4 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America the interim design submissions and meeting minutes in a time that is consistent with the turnaround times set forth in Design-Builder’s schedule. 2.4.2 Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions, as such submissions may have been modified in a design review meeting and recorded in the meetings minutes. The parties shall have a design review meeting to discuss, and Owner shall review and approve, the Construction Documents in accordance with the procedures set forth in Section 2.4.1 above. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction. 2.4.3 Owner’s review and approval of interim design submissions, meeting minutes, and the Construction Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner’s review nor approval of any interim design submissions, meeting minutes, and Construction Documents shall be deemed to transfer any design liability from Design-Builder to Owner. 2.4.4 To the extent not prohibited by the Contract Documents or Legal Requirements, Design- Builder may prepare interim design submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work. 2.5 Legal Requirements. 2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements. 2.5.2 The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design- Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price. Such effects may include, without limitation, revisions Design-Builder is required to make to the Construction Documents because of changes in Legal Requirements or due to changes in Legal Requirements affecting the performance of the Work that cause the Project to be shut down or delayed or materially impacts the Cost of Work. 2.6 Government Approvals and Permits. 2.6.1 Except as identified in an Owner’s Permit List attached as an exhibit to the Agreement, Design-Builder shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi- government entity having jurisdiction over the Project. 2.6.2 Design-Builder shall provide reasonable assistance to Owner in obtaining those permits, approvals and licenses that are Owner’s responsibility. 2.6.3 Any permits not listed in the Owner’s Permit List (or in the permit attachment) as being specifically required to be obtained by Design-Builder and that were not reasonably expected to be needed in the execution of this Work or any delays in obtaining such permits shall entitle Design- Builder to see equitable relief (time and/or compensation) in accordance with the terms of the Agreement. 2.7 Design-Builder’s Construction Phase Services. DBIA Document No. 535 Page 5 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America 2.7.1 Unless otherwise provided in the Contract Documents to be the responsibility of Owner or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents. 2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite expertise, skill and competence to satisfy the requirements of the Contract Documents. Design- Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction. 2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work consistent with the Contract Documents. Owner may reasonably object to Design-Builder’s selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts Design-Builder’s cost and/or time of performance. 2.7.4 Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party beneficiary rights. 2.7.5 Design-Builder shall coordinate the activities of all Subcontractors. If Owner performs other work on the Project or at the Site with separate contractors under Owner’s control, Design-Builder agrees to reasonably cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption. If such other work by Owner causes Design-Builder to incur additional costs or delays then Design-Builder shall be entitled to seek equitable relief (time and/or compensation) in accordance with the terms of the Agreement. 2.7.6 Design-Builder shall keep the Site reasonably free from debris, trash and construction wastes to permit Design-Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, Design-Builder shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project for its intended use. 2.8 Design-Builder’s Responsibility for Project Safety. 2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work. Unless otherwise required by the Contract Documents, Design-Builder’s Safety Representative shall be an individual stationed at the Site who may have responsibilities on the Project in addition to safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design- Builder’s personnel, Subcontractors and others as applicable. 2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety, as well as any Owner-specific safety requirements set forth in the Contract Documents, provided that such Owner-specific requirements do not violate any applicable Legal Requirement. DBIA Document No. 535 Page 6 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to Owner’s Representative and, to the extent mandated by Legal Requirements, to all government or quasi-government authorities having jurisdiction over safety- related matters involving the Project or the Work. 2.8.3 Design-Builder’s responsibility for safety under this Section 2.8 is not intended in any way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injuries, losses, damages or accidents resulting from their performance of the Work. 2.9 Design-Builder’s Warranty. 2.9.1 Design-Builder warrants to Owner that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder’s warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work in a commercially reasonable manner. Nothing in this warranty is intended to limit any manufacturer’s warranty which provides Owner with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design-Builder will provide Owner with all manufacturers’ warranties upon Substantial Completion. 2.9.2 If Design-Builder is required by the Contract specifications or Owner’s request/requirement to obtain a warranty for equipment or materials for a duration longer than the contractual correction period set forth in Section 2.10 (one year from Substantial Completion), then Design-Builder shall provide such warranties to Owner in Owner’s name, and any such warranty shall not be deemed to extend Design-Builder’s contractual correction period set forth in Section 2.10. 2.10 Correction of Defective Work. 2.10.1 Design-Builder agrees to correct any Work that is found to not be in conformance with the Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period of one year from the date of Substantial Completion of the Work or any portion of the Work, or within such longer period to the extent required by any specific warranty included in the Contract Documents. 2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conformance with the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. . If Design-Builder fails to commence the necessary steps within such seven (7) day period, Owner, in addition to any other remedies provided under the Contract Documents, may provide Design-Builder with written notice that Owner will commence correction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, Design- Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response, the seven (7) day period identified herein shall be deemed inapplicable. 2.10.3 The one-year period referenced in Section 2.10.1 above applies only to Design-Builder’s obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies Owner may have regarding Design-Builder’s other obligations under the Contract Documents. DBIA Document No. 535 Page 7 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America Article 3 Owner’s Services and Responsibilities 3.1 Duty to Cooperate. 3.1.1 Owner shall, throughout the performance of the Work, cooperate with Design-Builder and perform its responsibilities, obligations and services in a timely manner to facilitate Design-Builder’s timely and efficient performance of the Work and so as not to delay or interfere with Design- Builder’s performance of its obligations under the Contract Documents. 3.1.2 Owner shall provide timely reviews and approvals of interim design submissions and Construction Documents consistent with the turnaround times set forth in Design-Builder’s schedule. 3.1.3 Owner shall give Design-Builder timely notice of any Work that Owner notices to be defective or not in compliance with the Contract Documents. 3.2 Furnishing of Services and Information. 3.2.1 Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, at its own cost and expense, for Design-Builder’s information and use the following, all of which Design-Builder is entitled to rely upon in performing the Work: 3.2.1.1 Surveys describing the property, boundaries, topography and reference points for use during construction, including existing service and utility lines; 3.2.1.2 Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site; 3.2.1.3 Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project and enable Design-Builder to perform the Work; 3.2.1.4 A legal description of the Site; 3.2.1.5 To the extent available, record drawings (including but not limited to as-builts) of any existing structures at the Site; and 3.2.1.6 To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site. 3.2.2 Owner is responsible for securing and executing all necessary agreements with adjacent land or property owners that are necessary to enable Design-Builder to perform the Work. Owner is further responsible for all costs and delays, including attorneys’ fees, incurred in securing these necessary agreements. 3.3 Financial Information. 3.3.1 At Design-Builder’s request, Owner shall promptly furnish reasonable evidence satisfactory to Design-Builder that Owner has adequate funds available and committed to fulfill all of Owner’s contractual obligations under the Contract Documents. If Owner fails to furnish such financial information in a timely manner, Design-Builder may stop Work under Section 11.3 hereof or exercise any other right permitted under the Contract Documents. DBIA Document No. 535 Page 8 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America 3.3.2 Design-Builder shall cooperate with the reasonable requirements of Owner’s lenders or other financial sources. Notwithstanding the preceding sentence, after execution of the Agreement Design-Builder shall have no obligation to execute for Owner or Owner’s lenders or other financial sources any documents or agreements that require Design-Builder to assume obligations or responsibilities greater than those existing obligations Design-Builder has under the Contract Documents. 3.4 Owner’s Representative. 3.4.1 Owner’s Representative shall be responsible for providing Owner-supplied information and approvals in a timely manner to permit Design-Builder to fulfill its obligations under the Contract Documents. Owner’s Representative shall also provide Design-Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors, omissions or defects in the performance of the Work. Owner’s Representative shall communicate regularly with Design-Builder and shall be vested with the authority to act on behalf of Owner. 3.5 Government Approvals and Permits. 3.5.1 Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees set forth in the Owner’s Permit List attached as an exhibit to the Agreement. 3.5.2 Owner shall provide reasonable assistance to Design-Builder in obtaining those permits, approvals and licenses that are Design-Builder’s responsibility. 3.6 Owner’s Separate Contractors. 3.6.1 Owner is responsible for all work performed on the Project or at the Site by separate contractors under Owner’s control. Owner shall contractually require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, Design-Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents. Article 4 Hazardous Conditions and Differing Site Conditions 4.1 Hazardous Conditions. 4.1.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work, Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal Requirements, all government or quasi- government entities with jurisdiction over the Project or Site. 4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless. Such necessary measures shall include Owner retaining qualified independent experts to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that Owner must take either to remove the Hazardous Conditions or render the Hazardous Conditions harmless. 4.1.3 Design-Builder shall be obligated to resume Work at the affected area of the Project only after Owner’s expert provides it with written certification that (i) the Hazardous Conditions have DBIA Document No. 535 Page 9 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi-government entities having jurisdiction over the Project or Site. 4.1.4 Design-Builder will be entitled, in accordance with these General Conditions of Contract, to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions. 4.1.5 To the fullest extent permitted by law, Owner shall indemnify, defend and hold harmless Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them, and their officers, directors, employees and agents, from and against any and all claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses, arising out of or resulting from the presence, removal or remediation of Hazardous Conditions at the Site. 4.1.6 Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. To the fullest extent permitted by law, Design-Builder shall indemnify, defend and hold harmless Owner and Owner’s officers, directors, employees and agents from and against all claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses, arising out of or resulting from those Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. 4.2 Differing Site Conditions. 4.2.1 Concealed or latent physical conditions or subsurface conditions at the Site that (i) materially differ from the conditions indicated in the Contract Documents or (ii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally recognized as inherent in the Work are collectively referred to herein as “Differing Site Conditions.” If Design- Builder encounters a Differing Site Condition, Design-Builder will be entitled to an adjustment in the Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance are adversely impacted by the Differing Site Condition. 4.2.2 Upon encountering a Differing Site Condition, Design-Builder shall provide prompt written notice to Owner of such condition, which notice shall not be later than fourteen (14) days after such condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide such notice before the Differing Site Condition has been substantially disturbed or altered. Article 5 Insurance and Bonds 5.1 Design-Builder’s Insurance Requirements. 5.1.1 Design-Builder is responsible for procuring and maintaining the insurance for the coverage amounts all as set forth in the Insurance Exhibit to the Agreement. Coverage shall be secured from insurance companies authorized to do business in the state in which the Project is located, and with a minimum rating set forth in the Agreement. 5.1.2 Design-Builder’s insurance shall specifically delete any design-build or similar exclusions that could compromise coverages because of the design-build delivery of the Project. 5.1.3 Prior to commencing any construction services hereunder, Design-Builder shall provide Owner with certificates evidencing that (i) all insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect for the duration required by the DBIA Document No. 535 Page 10 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America Contract Documents and (ii) no insurance coverage will be canceled, renewal refused, or materially changed unless at least thirty (30) days prior written notice is given to Owner. If any of the foregoing insurance coverages are required to remain in force after final payment are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the Final Application for Payment. If any information concerning reduction of coverage is not furnished by the insurer, it shall be furnished by the Design-Builder with reasonable promptness according to the Design-Builder’s information and belief. 5.2 Owner’s Liability Insurance. 5.2.1 Owner shall procure and maintain from insurance companies authorized to do business in the state in which the Project is located such liability insurance, if any, as set forth in the Insurance Exhibit to the Agreement to protect Owner from claims which may arise from the performance of Owner’s obligations under the Contract Documents or Owner’s conduct during the course of the Project. 5.3 Owner’s Property Insurance. 5.3.1 As between Design-Builder and Owner, Owner assumes responsibility for all loss of or damage to property owned by or in the custody of Owner and any items at the job site or in transit thereto (except for the construction work in progress covered by Design-Builder’s Risk Policy as required by the Insurance Exhibit) however such loss or damage shall occur, including the fault or negligence of Design-Builder. 5.3.2 Owner shall insure (or not insure at its own discretion) such property with appropriate property insurance and does hereby waive all rights (and, to the extent required, shall require its insurers to waive all rights of subrogation) against Design-Builder for claims covered under any insurance which Owner may carry or may not carry for the property owned by or in the custody of Owner and any items at the job site or in transit thereto (except for the construction work in progress covered by Design-Builder’s Risk Policy as required by the Insurance Exhibit). 5.3.3 Owner and Design-Builder waive against each other and Owner’s separate contractors, Design Consultants, Subcontractors, agents and employees of each and all of them, all damages covered by property insurance provided herein, except such rights as they may have to the proceeds of such insurance. Design-Builder and Owner shall, where appropriate, require similar waivers of subrogation from Owner’s separate contractors, Design Consultants and Subcontractors and shall require each of them to include similar waivers in their contracts. These waivers of subrogation shall not contain any restriction or limitation that will impair the full and complete extent of its applicability to any person or entity unless agreed to in writing prior to the execution of this Agreement. 5.4 Bonds and Other Performance Security. 5.4.1 If Owner requires Design-Builder to obtain performance and labor and material payment bonds, or other forms of performance security, the amount, form and other conditions of such security shall be as set forth in the Agreement. 5.4.2 All bonds furnished by Design-Builder shall be in a form satisfactory to Owner. The surety shall be a company qualified and registered to conduct business in the state in which the Project is located. DBIA Document No. 535 Page 11 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America Article 6 Payment 6.1 Schedule of Values. 6.1.1 Unless required by the Owner upon execution of this Agreement, within ten (10) days of execution of the Agreement, Design-Builder shall submit for Owner’s review and approval a schedule of values for all of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts, (ii) include values for all items comprising the Work and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the Work. 6.1.2 The Owner will timely review and approve the schedule of values so as not to delay the submission of the Design-Builder’s first application for payment. The Owner and Design-Builder shall timely resolve any differences so as not to delay the Design-Builder’s submission of its first application for payment. 6.2 Monthly Progress Payments. 6.2.1 On or before the date established in the Agreement, Design-Builder shall submit for Owner’s review and approval its Application for Payment requesting payment for all Work performed as of the date of the Application for Payment. The Application for Payment shall be accompanied by all supporting documentation required by the Contract Documents and/or established at the meeting required by Section 2.1.4 hereof. 6.2.2 The Application for Payment may request payment for equipment and materials not yet incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials are suitably stored at either the Site or another acceptable location, (ii) the equipment and materials are protected by suitable insurance and (iii) upon payment, Owner will receive the equipment and materials free and clear of all liens and encumbrances. 6.2.3 All discounts offered by Subcontractor, Sub-Subcontractors and suppliers to Design- Builder for early payment shall accrue one hundred percent to Design-Builder to the extent Design- Builder advances payment. Unless Owner advances payment to Design-Builder specifically to receive the discount, Design-Builder may include in its Application for Payment the full undiscounted cost of the item for which payment is sought. 6.2.4 The Application for Payment shall constitute Design-Builder’s representation that the Work described herein has been performed consistent with the Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project, or upon Design-Builder’s receipt of payment, whichever occurs earlier. 6.3 Withholding of Payments. 6.3.1 On or before the date established in the Agreement, Owner shall pay Design-Builder all amounts properly due. If Owner determines that Design-Builder is not entitled to all or part of an Application for Payment as a result of Design-Builder’s failure to meet its obligations hereunder, it will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice shall indicate the specific amounts Owner intends to withhold, the reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectify Owner’s concerns. Design-Builder and Owner will attempt to resolve Owner’s concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract Documents, including those under Article 10 hereof. 6.3.2 Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay Design-Builder all undisputed amounts in an Application for Payment within the times required by DBIA Document No. 535 Page 12 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America the Agreement. 6.4 Right to Stop Work and Interest. 6.4.1 If Owner fails to pay timely Design-Builder any amount that becomes due, Design-Builder, in addition to all other remedies provided in the Contract Documents, may stop Work pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate set forth in the Agreement. 6.5 Design-Builder’s Payment Obligations. 6.5.1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its contractual obligations to such parties, all the amounts Design-Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Design Consultants and Subcontractors to pay those parties with whom they have contracted. Design-Builder will indemnify and defend Owner against any claims for payment and mechanic’s liens as set forth in Section 7.3 hereof. 6.6 Substantial Completion. 6.6.1 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in the Contract Documents, a portion of the Work, is Substantially Complete. Within five (5) days of Owner’s receipt of Design-Builder’s notice, Owner and Design-Builder will jointly inspect such Work to verify that it is Substantially Complete in accordance with the requirements of the Contract Documents. If such Work is Substantially Complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or portion thereof, (ii) the remaining items of Work that have to be completed before final payment, (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner’s and Design-Builder’s responsibility for the Project’s security, maintenance, utilities and insurance pending final payment, and (iv) an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. 6.6.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion. 6.6.3 Owner, at its option, may use a portion of the Work which has been determined to be Substantially Complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section 6.6.1 above, (ii) Design- Builder and Owner have obtained the consent of their sureties and insurers, and to the extent applicable, the appropriate government authorities having jurisdiction over the Project, and (iii) Owner and Design-Builder agree that Owner’s use or occupancy will not interfere with Design- Builder’s completion of the remaining Work. 6.7 Final Payment. 6.7.1 After receipt of a Final Application for Payment from Design-Builder, Owner shall make final payment by the time required in the Agreement, provided that Design-Builder has achieved Final Completion. 6.7.2 At the time of submission of its Final Application for Payment, Design-Builder shall provide the following information: 6.7.2.1 An affidavit that there are no claims, obligations or liens outstanding or unsatisfied DBIA Document No. 535 Page 13 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner’s interests; 6.7.2.2 A general release executed by Design-Builder waiving, upon receipt of final payment by Design-Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment; 6.7.2.3 Consent of Design-Builder’s surety, if any, to final payment; 6.7.2.4 All operating manuals, warranties and other deliverables required by the Contract Documents; and 6.7.2.5 Certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract Documents. 6.7.3 Upon making final payment, Owner waives all claims against Design-Builder except claims relating to (i) Design-Builder’s failure to satisfy its payment obligations, if such failure affects Owner’s interests, (ii) Design-Builder’s failure to complete the Work consistent with the Contract Documents, including defects appearing after Substantial Completion and (iii) the terms of any special warranties required by the Contract Documents. 6.7.4 Deficiencies in the Work discovered after Substantial Completion, whether or not such deficiencies would have been included on the Punch List if discovered earlier, shall be deemed warranty Work. Such deficiencies shall be corrected by Design-Builder under Sections 2.9 and 2.10 herein, and shall not be a reason to withhold final payment from Design-Builder, provided, however, that Owner shall be entitled to withhold from the Final Payment the reasonable value of completion of such deficient work until such work is completed. Article 7 Indemnification 7.1 Patent and Copyright Infringement. 7.1.1 Design-Builder shall defend any action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or the operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner shall give prompt written notice to Design-Builder of any such action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design-Builder shall indemnify and hold harmless Owner from and against all damages and costs, including but not limited to attorneys’ fees and expenses awarded against Owner or Design-Builder in any such action or proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of such actions. 7.1.2 If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result of any patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole expense take reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so procure such right within a reasonable time, Design-Builder shall promptly, at Design-Builder’s option and at Design-Builder’s expense, (i) modify the Work so as to avoid infringement of any such patent or copyright or (ii) replace said Work with Work that does not infringe or violate any such patent or copyright. 7.1.3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based on infringement or violation of a patent or copyright (i) relating solely to a particular process DBIA Document No. 535 Page 14 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America or product of a particular manufacturer specified and/or required by Owner and not offered or recommended by Design-Builder to Owner or (ii) arising from modifications to the Work by Owner or its agents after acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the preceding sentence, Owner shall defend, indemnify and hold harmless Design-Builder to the same extent Design-Builder is obligated to defend, indemnify and hold harmless Owner in Section 7.1.1 above. 7.1.4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between the parties relating to liability for infringement of violation of any patent or copyright. 7.2 Tax Claim Indemnification. 7.2.1 If, in accordance with Owner’s direction, an exemption for all or part of the Work is claimed for taxes, Owner shall indemnify, defend and hold harmless Design-Builder from and against any liability, penalty, interest, fine, tax assessment, attorneys’ fees or other expenses or costs incurred by Design-Builder as a result of any action taken by Design-Builder in accordance with Owner’s directive. Owner shall furnish Design-Builder with any applicable tax exemption certificates necessary to obtain such exemption, upon which Design-Builder may rely. 7.3 Payment Claim Indemnification. 7.3.1 Provided that Owner is not in breach of its contractual obligation to make payments to Design-Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic’s liens brought against Owner or against the Project as a result of the failure of Design-Builder, or those for whose acts it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within three (3) days of receiving written notice from Owner that such a claim or mechanic’s lien has been filed, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic’s lien bond. If Design-Builder fails to do so, Owner will have the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses incurred, including attorneys’ fees. 7.4 Design-Builder’s General Indemnification. 7.4.1 Design-Builder, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Owner, its officers, directors, and employees from and against claims, losses, damages, liabilities, including attorneys’ fees and expenses, for bodily injury, sickness or death, and property damage or destruction (other than to the Work itself) to the extent resulting from the negligent acts or omissions of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable. 7.4.2 If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable has a claim against Owner, its officers, directors, employees, or agents, Design-Builder’s indemnity obligation set forth in Section 7.4.1 above shall not be limited by any limitation on the amount of damages, compensation or benefits payable by or for Design-Builder, Design Consultants, Subcontractors, or other entity under any employee benefit acts, including workers’ compensation or disability acts. 7.5 Owner’s General Indemnification. 7.5.1 Only in the manner and to the extent permitted under applicable law, including but not limited to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., Owner shall indemnify, hold harmless and defend Design-Builder and any of Design-Builder’s officers, directors, and employees, from and against claims, losses, damages, liabilities, including attorneys’ fees and expenses (“Losses”), but only to the extent the aggregate of such Losses arising out of a single occurrence or accident do not exceed applicable policy limits under the Owner’s commercial general liability insurance DBIA Document No. 535 Page 15 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America policy, for bodily injury, sickness or death, and property damage or destruction (other than to the Work itself) to the extent resulting from the negligent acts or omissions of Owner’s separate contractors or anyone for whose acts any of them may be liable. Article 8 Time 8.1 Obligation to Achieve the Contract Times. 8.1.1 Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s) in accordance with Article 5 of the Agreement. 8.2 Delays to the Work. 8.2.1 If Design-Builder is delayed in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or those for whom Design-Builder is responsible, the Contract Time(s) for performance shall be reasonably extended by Change Order. By way of example, events that will entitle Design-Builder to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under Owner’s control (including separate contractors), changes in the Work, Differing Site Conditions, Hazardous Conditions, and Force Majeure Events. 8.2.2 In addition to Design-Builder’s right to a time extension for those events set forth in Section 8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price; provided, however, that the Contract Price shall not be adjusted for Force Majeure Events. Article 9 Changes to the Contract Price and Time 9.1 Change Orders. 9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by Owner and Design-Builder, stating their agreement upon all of the following: 9.1.1.1 The scope of the change in the Work; 9.1.1.2 The amount of the adjustment to the Contract Price; and 9.1.1.3 The extent of the adjustment to the Contract Time(s). 9.1.2 All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes. 9.1.3 If Owner requests a proposal for a change in the Work from Design-Builder and subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse Design-Builder for reasonable costs incurred for estimating services, design services and services involved in the preparation of proposed revisions to the Contract Documents. DBIA Document No. 535 Page 16 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America 9.2 Work Change Directives. 9.2.1 A Work Change Directive is a written order prepared and signed by Owner directing a change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract Time(s). 9.2.2 Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement. 9.3 Minor Changes in the Work. 9.3.1 Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however, that Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Design-Builder. 9.4 Contract Price Adjustments. 9.4.1 The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods: 9.4.1.1 Unit prices set forth in the Agreement or as subsequently agreed to between the parties; 9.4.1.2 A mutually accepted lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner; 9.4.1.3 Costs, fees and any other markups set forth in the Agreement; or 9.4.1.4 If an increase or decrease cannot be agreed to as set forth in items 9.4.1.1 through 9.4.1.3 above and Owner issues a Work Change Directive, the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change, including a reasonable overhead and profit, as may be set forth in the Agreement. 9.4.2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit prices will cause substantial inequity to Owner or Design-Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted. 9.4.3 If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed changes to the Work, or disagreement over delays to the Work or adjustments due to any other events, for which Design-Builder is entitled to be paid or receive a time extension for such adjustments, then Owner and Design-Builder shall resolve the disagreement pursuant to Article 10 hereof. As part of the negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner’s interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the services in accordance with Owner’s interpretations, Design-Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design-Builder (i) directing Design-Builder to proceed and (ii) specifying Owner’s interpretation of the services that are to be performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for Payment DBIA Document No. 535 Page 17 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the express understanding that (i) such payment by Owner does not prejudice Owner’s right to argue that it has no responsibility to pay for such services and (ii) receipt of such payment by Design-Builder does not prejudice Design- Builder’s right to seek full payment of the disputed services if Owner’s order is deemed to be a change to the Work. 9.5 Emergencies. 9.5.1 In any emergency affecting the safety of persons and/or property, Design-Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price and/or Contract Time(s) on account of emergency work shall be determined as provided in this Article 9. Article 10 Contract Adjustments and Disputes 10.1 Requests for Contract Adjustments and Relief. 10.1.1 If either Design-Builder or Owner believes that it is entitled to relief against the other for any event arising out of or related to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring any cost or expense and in accordance with any specific notice requirements contained in applicable sections of these General Conditions of Contract. In the absence of any specific notice requirement, written notice shall be given within a reasonable time, not to exceed twenty-one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later. Such notice shall include sufficient information to advise the other party of the circumstances giving rise to the claim for relief, the specific contractual adjustment or relief requested and the basis of such request. 10.2 Dispute Avoidance and Resolution. 10.2.1 The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Design-Builder and Owner each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work. 10.2.2 Design-Builder and Owner will first attempt to resolve disputes or disagreements at the field level through discussions between Design-Builder’s Representative and Owner’s Representative which shall conclude within fourteen (14) days of the written notice provided for in Section 10.1.1 unless the Owner and Design-Builder mutually agree otherwise. 10.2.3 If a dispute or disagreement cannot be resolved through Design-Builder’s Representative and Owner’s Representative, Design-Builder’s Senior Representative and Owner’s Senior Representative, upon the request of either party, shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute or disagreement. Five (5) days prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement. 10.2.4 If after meeting the Senior Representatives determine that the dispute or disagreement DBIA Document No. 535 Page 18 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America cannot be resolved on terms satisfactory to both parties, the parties shall submit within thirty (30) days of the conclusion of the meeting of Senior Representatives the dispute or disagreement to non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration Association (“AAA”) pursuant to its Construction Industry Mediation Rules. The mediation will be governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot so agree, by procedures established by the mediator. Unless otherwise mutually agreed by the Owner and Design-Builder and consistent with the mediator’s schedule, the mediation shall commence within ninety (90) days of the submission of the dispute to mediation. 10.3 Litigation. 10.3.1 Any claims, disputes or controversies between the parties arising out of or relating to the Agreement, or the breach thereof, which have not been resolved in accordance with the procedures set forth in Section 10.2 above, shall be decided by litigation in the Saline County, Kansas District Court. 10.3.2 If any suit or action is instituted by either party hereunder, including all appeals, the prevailing party in such suit or action shall be entitled to recover reasonable attorneys’ fees and expenses from the non-prevailing party, in addition to any other amounts to which it may be entitled. 10.3.3 [Intentionally deleted]. 10.3.4 [Intentionally deleted]. 10.4 Duty to Continue Performance. 10.4.1 Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to perform the Work and Owner shall continue to satisfy its payment obligations to Design-Builder, pending the final resolution of any dispute or disagreement between Design-Builder and Owner. 10.5 CONSEQUENTIAL DAMAGES. 10.5.1 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET FORTH IN SECTION 10.5.2 BELOW), NEITHER DESIGN-BUILDER NOR OWNER SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING. 10.5.2 The consequential damages limitation set forth in Section 10.5.1 above is not intended to affect the payment of liquidated damages or lost early completion bonus, if any, set forth in Article 5 of the Agreement, which both parties recognize has been established, in part, to reimburse Owner or reward Design-Builder for some damages that might otherwise be deemed to be consequential. Article 11 Stop Work and Termination for Cause 11.1 Owner’s Right to Stop Work. 11.1.1 Owner may, without cause and for its convenience, order Design-Builder in writing to stop and suspend the Work. Such suspension shall not exceed sixty (60) consecutive days or aggregate more than ninety (90) days during the duration of the Project. 11.1.2 Design-Builder is entitled to seek an adjustment of the Contract Price and/or Contract DBIA Document No. 535 Page 19 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension of stoppage of the Work by Owner. 11.2 Owner’s Right to Perform and Terminate for Cause. 11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers, (ii) supply the materials required by the Contract Documents, (iii) comply with applicable Legal Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v) prosecute the Work with promptness and diligence to ensure that the Work is completed by the Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract Documents, then Owner, in addition to any other rights and remedies provided in the Contract Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below. 11.2.2 Upon the occurrence of an event set forth in Section 11.2.1 above, Owner may provide written notice to Design-Builder that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within fourteen (14) days of Design-Builder’s receipt of such notice. If Design-Builder fails to cure, or reasonably commence to cure, such problem, then Owner may give a second written notice to Design-Builder of its intent to terminate within an additional fourteen (14) day period. If Design-Builder, within such second fourteen (14) day period, fails to cure, or reasonably commence to cure, such problem, then Owner may declare the Agreement terminated for default by providing written notice to Design-Builder of such declaration. 11.2.3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, Owner may enter upon the premises and take possession, for the purpose of completing the Work, of all materials, equipment, scaffolds, tools, appliances and other items thereon, which have been purchased or provided for the performance of the Work, all of which Design-Builder hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to complete the Work and provide all of the required labor, services, materials, equipment and other items. In the event of such termination, Design-Builder shall not be entitled to receive any further payments under the Contract Documents until the Work shall be finally completed in accordance with the Contract Documents. At such time, if the unpaid balance of the Contract Price exceeds the cost and expense incurred by Owner in completing the Work, such excess shall be paid by Owner to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work performed prior to its default. If Owner’s cost and expense of completing the Work exceeds the unpaid balance of the Contract Price, then Design-Builder shall be obligated to pay the difference to Owner. Such costs and expense shall include not only the cost of completing the Work, but also losses, damages, costs and expense, including attorneys’ fees and expenses, incurred by Owner in connection with the reprocurement and defense of claims arising from Design-Builder’s default, subject to the waiver of consequential damages set forth in Section 10.5 hereof. 11.2.4 If Owner improperly terminates the Agreement for cause, the termination for cause will be converted to a termination for convenience in accordance with the provisions of Article 8 of the Agreement. 11.3 Design-Builder’s Right to Stop Work. 11.3.1 Design-Builder may, in addition to any other rights afforded under the Contract Documents or at law, stop the Work for the following reasons: 11.3.1.1 Owner’s failure to provide financial assurances as required under Section 3.3 hereof; or 11.3.1.2 Owner’s failure to pay amounts properly due under Design-Builder’s Application for Payment. DBIA Document No. 535 Page 20 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America 11.3.2 Should any of the events set forth in Section 11.3.1 above occur, Design-Builder has the right to provide Owner with written notice that Design-Builder will stop the Work unless said event is cured within seven (7) days from Owner’s receipt of Design-Builder’s notice. If Owner does not cure the problem within such seven (7) day period, Design-Builder may stop the Work. In such case, Design-Builder shall be entitled to make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been adversely impacted by such stoppage. 11.4 Design-Builder’s Right to Terminate for Cause. 11.4.1 Design-Builder, in addition to any other rights and remedies provided in the Contract Documents or by law, may terminate the Agreement for cause for the following reasons: 11.4.1.1 The Work has been stopped for sixty (60) consecutive days, or more than aggregate ninety (90) days during the duration of the Project, because of court order, any government authority having jurisdiction over the Work, or orders by Owner under Section 11.1.1 hereof, provided that such stoppages are not due to the acts or omissions of Design- Builder or anyone for whose acts Design-Builder may be responsible. 11.4.1.2 Owner’s failure to provide Design-Builder with any information, permits or approvals that are Owner’s responsibility under the Contract Documents which result in the Work being stopped for sixty (60) consecutive days, or more than aggregate ninety (90) days during the duration of the Project, even though Owner has not ordered Design-Builder in writing to stop and suspend the Work pursuant to Section 11.1.1 hereof. 11.4.1.3 Owner’s failure to cure the problems set forth in Section 11.3.1 above after Design-Builder has stopped the Work. 11.4.2 Upon the occurrence of an event set forth in Section 11.4.1 above, Design-Builder may provide written notice to Owner that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Owner’s receipt of such notice. If Owner fails to cure, or reasonably commence to cure, such problem, then Design-Builder may give a second written notice to Owner of its intent to terminate within an additional seven (7) day period. If Owner, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Design-Builder may declare the Agreement terminated for default by providing written notice to Owner of such declaration. In such case, Design-Builder shall be entitled to recover in the same manner as if Owner had terminated the Agreement for its convenience under Article 8 of the Agreement. 11.5 Bankruptcy of Owner or Design-Builder. 11.5.1 If either Owner or Design-Builder institutes or has instituted against it a case under the United States Bankruptcy Code (such party being referred to as the “Bankrupt Party”), such event may impair or frustrate the Bankrupt Party’s ability to perform its obligations under the Contract Documents. Accordingly, should such event occur: 11.5.1.1 The Bankrupt Party, its trustee or other successor, shall furnish, upon request of the non-Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to perform all future material obligations under the Contract Documents, which assurances shall be provided within ten (10) days after receiving notice of the request; and 11.5.1.2 The Bankrupt Party shall file an appropriate action within the bankruptcy court to seek assumption or rejection of the Agreement within sixty (60) days of the institution of the bankruptcy filing and shall diligently prosecute such action. If the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt Party shall be entitled to request the bankruptcy court to reject the Agreement, declare the Agreement terminated DBIA Document No. 535 Page 21 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America and pursue any other recourse available to the non-Bankrupt Party under this Article 11. 11.5.2 The rights and remedies under Section 11.5.1 above shall not be deemed to limit the ability of the non-Bankrupt Party to seek any other rights and remedies provided by the Contract Documents or by law, including its ability to seek relief from any automatic stays under the United States Bankruptcy Code or the right of Design-Builder to stop Work under any applicable provision of these General Conditions of Contract. Article 12 Electronic Data 12.1 Electronic Data. 12.1.1 The parties recognize that Contract Documents, including drawings, specifications and three-dimensional modeling (such as Building Information Models) and other Work Product may be transmitted among Owner, Design-Builder and others in electronic media as an alternative to paper hard copies (collectively “Electronic Data”). 12.2 Transmission of Electronic Data. 12.2.1 Owner and Design-Builder shall agree upon the software and the format for the transmission of Electronic Data. Each party shall be responsible for securing the legal rights to access the agreed-upon format, including, if necessary, obtaining appropriately licensed copies of the applicable software or electronic program to display, interpret and/or generate the Electronic Data. 12.2.2 Neither party makes any representations or warranties to the other with respect to the functionality of the software or computer program associated with the electronic transmission of Work Product. Unless specifically set forth in the Agreement, ownership of the Electronic Data does not include ownership of the software or computer program with which it is associated, transmitted, generated or interpreted. 12.2.3 By transmitting Work Product in electronic form, the transmitting party does not transfer or assign its rights in the Work Product. The rights in the Electronic Data shall be as set forth in Article 4 of the Agreement. Under no circumstances shall the transfer of ownership of Electronic Data be deemed to be a sale by the transmitting party of tangible goods. Furthermore, it is understood that the transmitting party shall retain its rights in its standard drawing details, designs, specifications, databases, computer software and any other proprietary property that exist prior to the performance of the Work and any development or modification of such in the performance of the Work shall also remain the property of the transmitting party. 12.3 Electronic Data Protocol. 12.3.1 The parties acknowledge that Electronic Data may be altered or corrupted, intentionally or otherwise, due to occurrences beyond their reasonable control or knowledge, including but not limited to compatibility issues with user software, manipulation by the recipient, errors in transcription or transmission, machine error, environmental factors, and operator error. Consequently, the parties understand that there is some level of increased risk in the use of Electronic Data for the communication of design and construction information and, in consideration of this, agree, and shall require their independent contractors, Subcontractors and Design Consultants to agree, to the following protocols, terms and conditions set forth in this Section 12.3. 12.3.2 Electronic Data will be transmitted in the format agreed upon in Section 12.2.1 above, including file conventions and document properties, unless prior arrangements are made in DBIA Document No. 535 Page 22 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America advance in writing. 12.3.3 The Electronic Data represents the information at a particular point in time and is subject to change. Therefore, the parties shall agree upon protocols for notification by the author to the recipient of any changes which may thereafter be made to the Electronic Data, which protocol shall also address the duty, if any, to update such information, data or other information contained in the electronic media if such information changes prior to Final Completion of the Project. 12.3.4 The transmitting party specifically disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with respect to the media transmitting the Electronic Data. However, transmission of the Electronic Data via electronic means shall not invalidate or negate any duties pursuant to the applicable standard of care with respect to the creation of the Electronic Data, unless such data is materially changed or altered after it is transmitted to the receiving party, and the transmitting party did not participate in such change or alteration. Article 13 Miscellaneous 13.1 Confidential Information. 13.1.1 Confidential Information is defined as information which is determined by the transmitting party to be of a confidential or proprietary nature and: (i) the transmitting party identifies as either confidential or proprietary; (ii) the transmitting party takes steps to maintain the confidential or proprietary nature of the information; and (iii) the document is not otherwise available in or considered to be in the public domain. The receiving party agrees to maintain the confidentiality of the Confidential Information and agrees to use the Confidential Information solely in connection with the Project. 13.2 Assignment. 13.2.1 Neither Design-Builder nor Owner shall, without the written consent of the other assign, transfer or sublet any portion or part of the Work or the obligations required by the Contract Documents. 13.3 Successorship. 13.3.1 Design-Builder and Owner intend that the provisions of the Contract Documents are binding upon the parties, their employees, agents, heirs, successors and assigns. 13.4 Governing Law. 13.4.1 The Agreement and all Contract Documents shall be governed by the laws of the place of the Project, without giving effect to its conflict of law principles. 13.5 Severability. 13.5.1 If any provision or any part of a provision of the Contract Documents shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any applicable Legal Requirements, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of the Contract DBIA Document No. 535 Page 23 Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2010 Design-Build Institute of America Documents, which shall remain in full force and effect as if the unenforceable provision or part were deleted. 13.6 No Waiver. 13.6.1 The failure of either Design-Builder or Owner to insist, in any one or more instances, on the performance of any of the obligations required by the other under the Contract Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance. 13.7 Headings. 13.7.1 The headings used in these General Conditions of Contract, or any other Contract Document, are for ease of reference only and shall not in any way be construed to limit or alter the meaning of any provision. 13.8 Notice. 13.8.1 Whenever the Contract Documents require that notice be provided to the other party, notice will be deemed to have been validly given (i) if delivered in person to the individual intended to receive such notice, (ii) four (4) days after being sent by registered or certified mail, postage prepaid to the address indicated in the Agreement, or (iii) if transmitted by facsimile, by the time stated in a machine generated confirmation that notice was received at the facsimile number of the intended recipient. 13.9 Amendments. 13.9.1 The Contract Documents may not be changed, altered, or amended in any way except in writing signed by a duly authorized representative of each party. Exhibit B – Performance & Payment Bond DBIA Document No 620 Page 1 Performance Bond for Design-Build Projects © 2015 Design-Build Institute of America Performance Bond for Design-Build Projects Document No. 620 First Edition, 2015 © Design-Build Institute of America Washington, D.C. DBIA Contract Document #620 Exhibit C – KDHE Required Contract Provisions KDHE SRF CONTRACT PROVISIONS Revision 4-16-2020 KDHE SRF Forms and Certifications (Must be submitted with Bids) Revision 4-16-2020 STATE OF KANSAS ACT AGAINST DISCRIMINATION CONTRACT PROVISION CERTIFICATION FORM During the performance of this contract, the contractor agrees as follows: (1) The contractor shall observe the provisions of the Kansas Act Against Discrimination and shall not discriminate against any person in the performance of work under the present contract because of race, religion, color, sex, disability, national origin, or ancestry; (2) In all solicitations or advertisements for employees, the contractor shall include the phrase “equal opportunity employer” or a similar phrase to be approved by the Commission; (3) If the contractor fails to comply with the manner in which the contractor reports to the Commission in accordance with the provisions of K.S.A.44-1031 and amendments thereto, the contractor shall be deemed to have breached the present contract and it may be cancelled, terminated, or suspended, in whole or in part, by the contracting agency; (4) If the contractor is found guilty of a violation of the Kansas Act Against Discrimination under a decision or order of the Commission which has become final, the contractor shall be deemed to have breached the present contract and it may be cancelled, terminated or suspended, in whole, or in part, by the contracting agency; (5) The contractor shall include the provisions of (1) through (4) in every applicable subcontract or purchase order so that such provisions will be binding upon such subcontractor or vendor. PROJECT/CONTRACT NAME AND NO. MUNICIPALITY CONTRACTOR’S SIGNATURE TITLE KPWSLF NO. DATE SRF Bid Forms Page 1 Demonstration of Compliance with DBE Good Faith Efforts Worksheet Project Name KPWSLF or KWPCRLF Project No. Prime Contract Bidder/Engineering Firm Address Contact Person: Telephone No. The following DBE firms were made aware of subcontracting/supplier opportunities related to the project listed above. DBE Subcontractor/Supplier contacted Address Contact Person: Telephone No. Email Method used to contact (circle one): Phone Mail Fax Is entity also a certified as a MBE or WBE ? (if no leave blank) MBE/WBE status certified by (circle one) EPA SBA Other DBE Subcontractor/Supplier contacted Address Contact Person: Telephone No. Email Method used to contact (circle one): Phone Mail Fax Is entity also a certified as a MBE or WBE ? (if no leave blank) MBE/WBE status certified by (circle one) EPA SBA Other DBE Subcontractor/Supplier contacted Address Contact Person: Telephone No. Email Method used to contact (circle one): Phone Mail Fax Is entity also a certified as a MBE or WBE ? (if no leave blank) MBE/WBE status certified by (circle one) EPA SBA Other DBE Subcontractor/Supplier contacted Address Contact Person: Telephone No. Email Method used to contact (circle one): Phone Mail Fax Is entity also a certified as a MBE or WBE ? (if no leave blank) MBE/WBE status certified by (circle one) EPA SBA Other Comments Prepared By: Date: (Use additional copies of this sheet if needed) SRF Bid Forms Page 2 KDHE PROJECT # CERTIFICATION REGARDING LOBBYING CERTIFICATION FOR CONTRACTS, GRANTS, LOANS AND COOPERATIVE AGREEMENTS The undersigned certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including sub-contracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31 U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Typed Name & Title of Authorized Representative Signature and Date of Authorized Representative EPA Form 6600-06 (Rev. 06/2008) Previous editions are obsolete. SRF Bid Forms Page 3 American Iron and Steel Certification 1. Identification of American-made Iron and Steel Products: The Bidder certifies that this bid reflects the Bidder's best, good faith effort to identify domestic sources of iron and steel products for every component contained in the bid solicitation where such American-made components are required. The term ‘‘iron and steel products’’ means the following products made primarily of iron or steel - lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. 2. Verification of U.S. Production: If this bid is accepted, the Bidder agrees that it will provide, to the Owner, reasonable, sufficient, and timely verification of the U.S. production of each Iron and Steel Product incorporated into the project. 3. Documentation Regarding Non-American-made Iron and Steel: The Bidder certifies that for any Iron or Steel Product that is not American-made but was incorporated in the development of this bid, is allowed by waiver of the U.S. Environmental Protection Agency and such waiver is attached to this certification. Signature Date Name and Title of Signer (Please Print) Q & A’s, Waiver request instructions, and a list of approved waivers can be found at http://water.epa.gov/grants_funding/aisrequirement.cfm SRF Bid Forms Page 4 KDHE SRF Provisions Revision 4-16-2020 Contract Provisions for Equal Opportunity 1. The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. 2. The contractor will, in all solicitations or advancements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. 3. The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. 6. In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 7. The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States." [Sec. 202 amended by EO 11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684, EO 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] KDHE SRF Provisions Page 1 Equal Employment Opportunity isTHE LAW Private Employers, State and Local Governments, Educational Institutions, Employment Agencies and Labor Organizations � Applicants to and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations are protected under Federal law from discrimination on the following bases: � RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN Title VII of the Civil Rights Act of 1964, as amended, protects applicants and employees from discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex (including pregnancy), or national origin. Religious discrimination includes failing to reasonably accommodate an employee’s religious practices where the accommodation does not impose undue hardship. DISABILITY Title I and Title V of the Americans with Disabilities Act of 1990, as amended, protect qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship. AGE The Age Discrimination in Employment Act of 1967, as amended, protects applicants and employees 40 years of age or older from discrimination based on age in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. SEX (WAGES) In addition to sex discrimination prohibited by Title VII of the Civil Rights Act, as amended, the Equal Pay Act of 1963, as amended, prohibits sex discrimination in the payment of wages to women and men performing substantially equal work, in jobs that require equal skill, effort, and responsibility, under similar working conditions, in the same establishment. GENETICS Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members. RETALIATION All of these Federal laws prohibit covered entities from retaliating against a person who files a charge of discrimination, participates in a discrimination proceeding, or otherwise opposes an unlawful employment practice. WHAT TO DO IF YOU BELIEVE DISCRIMINATION HAS OCCURRED There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov. KDHE SRF Provisions Page 2 Employers Holding Federal Contracts or Subcontracts Applicants to and employees of companies with a Federal government contract or subcontract are protected under Federal law from discrimination on the following bases: RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN Executive Order 11246, as amended, prohibits job discrimination on the basis of race, color, religion, sex or national origin, and requires affirmative action to ensure equality of opportunity in all aspects of employment. INDIVIDUALS WITH DISABILITIES Section 503 of the Rehabilitation Act of 1973, as amended, protects qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship. Section 503 also requires that Federal contractors take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level. DISABLED, RECENTLY SEPARATED, OTHER PROTECTED, AND ARMED FORCES SERVICE MEDAL VETERANS The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, prohibits job discrimination and requires affirmative action to employ and advance in employment disabled veterans, recently separated veterans (within three years of discharge or release from active duty), other protected veterans (veterans who served during a war or in a campaign or expedition for which a campaign badge has been authorized), and Armed Forces service medal veterans (veterans who, while on active duty, participated in a U.S. military operation for which an Armed Forces service medal was awarded). RETALIATION Retaliation is prohibited against a person who files a complaint of discrimination, participates in an OFCCP proceeding, or otherwise opposes discrimination under these Federal laws. Any person who believes a contractor has violated its nondiscrimination or affirmative action obligations under the authorities above should contact immediately: The Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, 1-800-397-6251 (toll-free) or (202) 693-1337 (TTY). OFCCP may also be contacted by e-mail at OFCCP-Public@dol.gov, or by calling an OFCCP regional or district office, listed in most telephone directories under U.S. Government, Department of Labor. Programs or Activities Receiving Federal Financial Assistance RACE, COLOR, NATIONAL ORIGIN, SEX INDIVIDUALS WITH DISABILITIES In addition to the protections of Title VII of the Civil Rights Act of 1964, as Section 504 of the Rehabilitation Act of 1973, as amended, prohibits employment amended, Title VI of the Civil Rights Act of 1964, as amended, prohibits discrimination on the basis of disability in any program or activity which receives discrimination on the basis of race, color or national origin in programs or Federal financial assistance. Discrimination is prohibited in all aspects of activities receiving Federal financial assistance. Employment discrimination employment against persons with disabilities who, with or without reasonable is covered by Title VI if the primary objective of the financial assistance is accommodation, can perform the essential functions of the job. provision of employment, or where employment discrimination causes or may If you believe you have been discriminated against in a program of any cause discrimination in providing services under such programs. Title IX of the institution which receives Federal financial assistance, you should immediately Education Amendments of 1972 prohibits employment discrimination on the contact the Federal agency providing such assistance. basis of sex in educational programs or activities which receive Federal financial assistance. EEOC 9/02 and OFCCP 8/08 Versions Useable With 11/09 Supplement EEOC-P/E-1 (Revised 11/09) KDHE SRF Provisions Page 3 Contract Provisions for the Kansas Act Against Discrimination (a) Except as provided by subsection (c), every contractor for or on behalf of the State and any county or municipality or other political subdivision of the State, or any agency of or authority created by any of the foregoing, for the construction, alteration, or repair of any public building or public work or for the acquisition of materials, equipment, supplies, or services shall contain provisions by which the contractor agrees that: (1) The contractor shall observe the provisions of the Kansas Act Against Discrimination and shall not discriminate against any person in the performance of work under the present contract because of race, religion, color, sex, disability, national origin, or ancestry; (2) In all solicitations or advertisements for employees, the contractor shall include the phrase “equal opportunity employer” or a similar phrase to be approved by the Commission; (3) If the contractor fails to comply with the manner in which the contractor reports to the Commission in accordance with the provisions of K.S.A.44-1031 and amendments thereto, the contractor shall be deemed to have breached the present contract and it may be cancelled, terminated, or suspended, in whole or in part, by the contracting agency; (4) If the contractor is found guilty of a violation of the Kansas Act Against Discrimination under a decision or order of the Commission which has become final, the contractor shall be deemed to have breached the present contract and it may be cancelled, terminated or suspended, in whole, or in part, by the contracting agency; (5) The contractor shall include the provisions of subsections (a)(1) through (4) in every subcontract or purchase order so that such provisions will be binding upon such subcontractor or vendor. (b) The Kansas Human Rights Commission shall not be prevented hereby from requiring reports of contractors found to be not in compliance with the Kansas Act Against Discrimination. (c) The provisions of this section shall not apply to a contract entered into by a contractor: (1) Who employs fewer than four employees during the term of such contract; or (2) Whose contracts with the governmental entity letting such contract cumulatively total $5,000 or less during the fiscal year of such governmental entity. Contract Provisions for right of entry by KDHE The Contractor shall secure the right of entry to the project site for representatives of the Kansas Department of Health and Environment, so they may have access to the work whenever it is in preparation or progress and also to any books, documents, papers and records of the Contractor which are directly pertinent to that specific contract for the purpose of making audit, examinations, excerpts and transcriptions. Proper facilities and safe conditions must be provided for access and inspections, including advice regarding site safety procedures and programs to allow compliance. Contract Provisions for Historical and Archeological Deposits If during the course of construction evidence of deposits of historical or archeological interest is found, the contractor shall cease operations affecting the find and shall notify the owner who shall notify the Kansas Department of Health and Environment and the Executive Director, Kansas State Historical Society, 6425 SW 6th Street, Topeka, Kansas 66615. No further disturbance of the deposits shall ensue until the contractor has KDHE SRF Provisions Page 4 been notified by the owner that he may proceed. The owner will issue a notice to proceed only after the State official has surveyed the find and made a determination to Kansas Department of Health and Environment and the owner. Compensation to the contractor, if any, for lost time or changes in construction to avoid the find, shall be determined in accordance with changed conditions or change order provisions of the specifications. Contract Provisions for NPDES General Permit Coverage for Discharges of Stormwater Runoff from Construction Activities The owner or Contractor must obtain, prior to construction, permit coverage from KDHE to discharge stormwater runoff associated with construction activity for most any project which disturbs one acre or more of soils. A Notice of Intent form (NOI) must be submitted to KDHE 60 days before the start of construction and a permit determination from KDHE must be made before construction can begin. The Kansas construction stormwater general permit, a Notice of Intent (application form), a frequently asked questions file, and supplemental materials are available on-line on the KDHE Stormwater Web Page at www.kdhe.state.ks.us/stormwater. Contract Provisions for Restrictions on Lobbying The Contractor agrees to comply with Title 40 CRF Part 34, New Restrictions on Lobbying. A Certification form must be submitted with the bid documents. Contract Provisions for the Trafficking Victims Protection Act of 2000 The Contractor, its employees, sub-contractors, and sub-contractors employees under any KPWSLF Loan Agreement, may not engage in severe forms of trafficking in persons during the period of time that the award is in effect; procure a commercial sex act during the period of time that the award is in effect; or use forced labor in the performance of the award or sub-awards under the award. Contract Provisions for Suspension and Debarment The Contractor certifies that it is not suspended or debarred from participating in federal assistance and benefit programs and further agrees to fully comply with Subpart C of 2 CFR Part 180 and 2 CFR Part 1532, entitled “Responsibilities of Participants Regarding Transactions.” The Contractor must ensure that any lower tier covered transaction, as described in Subpart B of 2 CFR Part 180 and 2 CFR Part 1532, entitled “Covered Transactions,” includes a term or condition requiring compliance with Subpart C. The Contractor agrees that failing to disclose the required information in 2 CFR 180.335 may result in the delay or negation of this assistance agreement, or pursuance of legal remedies, including suspension and debarment. Contract Provisions for Non Discrimination The contractor must comply with Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and a variety of program-specific statutes with nondiscrimination requirements. Other civil rights laws may impose additional requirements on the contractor. These laws include, but are not limited to, Title VII of the Civil Rights Act of 1964 (prohibiting race, color, national origin, religion, and sex discrimination in employment), the Americans with Disabilities Act (prohibiting disability discrimination in employment and in services provided by State and local governments, businesses, and non-profit agencies), and the Fair Housing Act (prohibiting race, color, national origin, age, family status, and disability discrimination in housing), as well as any other applicable civil rights laws. KDHE SRF Provisions Page 5 Contract Provisions for Non Segregated Facilities The contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensuring that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. This obligation extends to all contracts containing the equal opportunity clause regardless of the amount of the contract. The term “facilities,” as used in this section, means waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees; Provided, That separate or single-user restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes. Contract Provisions for American Iron and Steel All of the iron and steel products used in the project must be produced in the United States. The term ‘‘iron and steel products’’ means the following products made primarily of iron or steel - lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. A Certification form must be submitted with the bid documents. The following definitions apply to this provision. Municipal castings are cast iron or steel infrastructure products that are melted and cast. They typically provide access, protection, or housing for components incorporated into utility owned drinking water, storm water, wastewater, and surface infrastructure. They are typically made of grey or ductile iron, or steel. Examples of municipal castings are access hatches, ballast screen, benches (Iron or Steel), bollards, cast bases, cast iron hinged hatches, square and rectangular; cast iron riser rings, catch basin inlet, cleanout/monument boxes, construction covers and frames, curb and corner guards, curb openings, detectable warning plates, downspout shoes (boot, inlet), drainage grates, frames and curb inlets, inlets; junction boxes, lampposts, manhole covers, rings and frames, and risers. Construction materials are those articles, materials, or supplies made primarily of iron and steel, that are permanently incorporated into the project, not including mechanical and/or electrical components, equipment and systems. Some of these products may overlap with what is also considered “structural steel”. This includes, but is not limited to, the following products: wire rod, bar, angles, concrete reinforcing bar, wire, wire cloth, wire rope and cables, tubing, framing, joists, trusses, fasteners (i.e., nuts and bolts), welding rods, decking, grating, railings, stairs, access ramps, fire escapes, ladders, wall panels, dome structures, roofing, ductwork, surface drains, cable hanging systems, manhole steps, fencing and fence tubing, guardrails, doors, and stationary screens. Mechanical and electrical components, equipment and systems are NOT considered construction materials. Mechanical equipment is typically that which has motorized parts and/or is powered by a motor. Electrical equipment is typically any machine powered by electricity and includes components that are part of the electrical distribution system. The following examples (including their appurtenances necessary for their intended use and operation) are NOT considered construction materials: pumps, motors, gear reducers, drives (including variable frequency drives (VFDs)), electric/pneumatic/manual accessories used to operate valves (such as electric valve actuators), mixers, gates, motorized screens (such as traveling screens), blowers/aeration equipment, compressors, meters, sensors, controls and switches, supervisory control and data acquisition (SCADA), membrane bioreactor systems, membrane filtration systems, filters, clarifiers and clarifier mechanisms, rakes, grinders, disinfection systems, presses (including belt presses), conveyors, cranes, HVAC (excluding ductwork), water heaters, heat exchangers, generators, cabinetry and housings KDHE SRF Provisions Page 6 (such as electrical boxes/enclosures), lighting fixtures, electrical conduit, emergency life systems, metal office furniture, shelving, laboratory equipment, analytical instrumentation, and dewatering equipment. Noncompliance with this provision is only allowed through a waiver issued by the U.S. Environmental Protection Agency. Q&A documents, waiver request instructions, and a list of proposed and approved waivers can be found at http://water.epa.gov/grants_funding/aisrequirement.cfm . Davis Bacon Wage Rate Contract Provisions (1) Minimum wages. (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3) ), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in § 5.5 (a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. Loan Recipients may obtain wage determinations from the U.S. Department of Labor’s web site, www.wdol.gov. (ii)(A) The Loan Recipient(s), on behalf of EPA, shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The EPA award official shall coordinate with the Department of Labor Wage and Hour Division to approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. KDHE SRF Provisions Page 7 (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the Loan Recipient(s) agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the Loan Recipient (s) to the State award official. The State award official will transmit the report, to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the State award official or will notify the State award official within the 30-day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the and the Loan Recipient(s) do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the award official shall refer the questions, including the views of all interested parties and the recommendation of the State award official, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer award official or will notify the contracting officer award official within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii)(B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (2) Withholding. The Loan Recipient(s) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis- Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and basic records. (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security KDHE SRF Provisions Page 8 number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to the Loan Recipient, that is, the entity that receives the sub-grant or loan from the State capitalization grant recipient. Such documentation shall be available on request of the State recipient or EPA. As to each payroll copy received, the Loan Recipient shall provide written confirmation in a form satisfactory to the State indicating whether or not the project is in compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies for the specified week. The payrolls shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on the weekly payrolls. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the Loan Recipient (s) for transmission to the State or EPA if requested by EPA , the State, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the Loan Recipient (s). (B) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be provided under § 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (a)(3)(ii)(B) of this section. KDHE SRF Provisions Page 9 (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the State, EPA or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency or State may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (4) Apprentices and trainees-- (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage KDHE SRF Provisions Page 10 determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. (5) Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. (6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the EPA determines may by appropriate, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. (7) Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and Loan Recipient(s), State, EPA, the U.S. Department of Labor, or the employees or their representatives. (10) Certification of eligibility. (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. KDHE SRF Provisions Page 11 (11) Contract Provision for Contracts in Excess of $100,000. (a) The following provisions apply to all contracts that are in excess of $100,000. As used in these provisions, the terms laborers and mechanics include watchmen and guards. (1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one- half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (a)(1) of this section the contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (a)(1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (a)(1) of this section. (3) Withholding for unpaid wages and liquidated damages. The municipality, upon written request of the EPA Award Official or an authorized representative of the Department of Labor, shall withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (a)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (a)(1) through (4) of this section. (b) In addition to the clauses contained in (a)(3), above, in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other statutes cited in 29 CFR 5.1, the contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. Further, the records to be maintained under this paragraph shall be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the (write the name of agency) and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview employees during working hours on the job. KDHE SRF Provisions Page 12 Disadvantaged Business Enterprise Contract Provisions The contractor shall not discriminate on the basis of race, color, national origin or sex in the performance of this contract. The contractor shall carry out applicable requirements of 40 CFR part 33 in the award and administration of contracts awarded under EPA financial assistance agreements. Failure by the contractor to carry out these requirements is a material breach of this contract which may result in the termination of this contract or other legally available remedies. A Disadvantaged Business Enterprise (DBE) includes Women’s Business Enterprises, (WBE) Minority Business Enterprises (MBE), a Small Business Enterprises (SBE); a Small Business in Rural Area (SBRA); a Labor Surplus Area Firm (LSAF); or a Historically Underutilized Business (HUB) Zone Small Business Concern or a concern under a successor program. The contractor must also adopt a fair share objective of awarding 4.1/% of the contract amount to Minority Business Enterprises (MBE’s) and 6.9% of the contract amount to Women’s Business Enterprises (WBE’s). This fair share objective is not a quota and the contractor cannot be penalized for failure to meet this objective. The contractor is required to make the Good Faith Efforts and apply the administrative requirements listed below for any subcontracts. Good Faith Efforts 1. Ensure DBEs are made aware of subcontracting opportunities to the fullest extent practicable through outreach and recruitment activities. This step may include sending letters or making other personal contacts with DBEs. DBEs should be contacted when other potential subcontractors/suppliers are contacted, within reasonable time (i.e. minimum of fifteen days) prior to bid submission or closing date for receipt of initial offers. Those letters or other contacts should communicate the following: i. Specific description of the work to be subcontracted or supplies to be purchased; ii. How and where to obtain a copy of plans and specifications or other detailed information needed to prepare a detailed price quotation; iii. Date the quotation is due to the prime contractor; iv. Name, address, and phone number of the person in the prime contractor’s firm whom the prospective DBE subcontractor/supplier should contact for additional information. 2. Make information on forthcoming opportunities available to DBEs and arrange time frames for contracts and establish delivery schedules, where the requirements permit, in a way that encourages and facilitates participation by DBEs in the competitive process. This includes, whenever possible, posting solicitations for bids or proposals for a minimum of 30 calendar days before the bid or proposal closing date. KDHE SRF Provisions Page 13 3. Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs. 4. Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually. 5. Use the services and assistance of the SBA and the Minority Business Development Agency of the Department of Commerce. DBE Administrative Requirements The contractor: 1. Must pay its subcontractor for satisfactory performance not more than 30 days from the prime contractor’s receipt of payment. 2. Must notify KDHE in writing prior to termination of a DBE subcontractor for convenience. 3. Must employ the good faith efforts when soliciting a replacement subcontractor, if the original subcontractor fails to complete work for any reason. Determination of Compliance If Prime contractors award any subcontracts, they must demonstrate compliance with DBE requirements in order to be deemed responsive prior to contract award. Demonstration of compliance shall include a list of DBE subcontractors contacted and the method used to contact them (the attached Demonstration of Compliance with DBE Good Faith Efforts Worksheet can be used for this purpose). KDHE SRF Provisions Page 14 PREVAILING WAGES You must be paid not less than the wage rate listed in the Davis-Bacon Wage Decision posted with this Notice for the work you perform. OVERTIME You must be paid not less than one and one-half times your basic rate of pay for all hours worked over 40 in a work week. There are few exceptions. ENFORCEMENT Contract payments can be withheld to ensure workers receive wages and overtime pay due, and liquidated damages may apply if overtime pay requirements are not met. Davis-Bacon contract clauses allow contract termination and debarment of contractors from future federal contracts for up to three years. A contractor who falsifies certified payroll records or induces wage kickbacks may be subject to civil or criminal prosecution, fines and/or imprisonment. APPRENTICES Apprentice rates apply only to apprentices properly registered under approved Federal or State apprenticeship programs. PROPER PAY If you do not receive proper pay, or require further information on the applicable wages, contact the Contracting Officer listed below: or contact the U.S. Department of Labor’s Wage and Hour Division. EMPLOYEE RIGHTS UNDER THE DAVIS-BACON ACT FOR LABORERS AND MECHANICS EMPLOYED ON FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION PROJECTS 1-866-487-9243 TTY: 1-877-889-5627 www.dol.gov/whd WH1321 REV 10/17 WAGE AND HOUR DIVISION UNITED STATES DEPARTMENT OF LABOR KDHE SRF Provisions Page 15 REQUEST FOR AUTHORIZATION OF ADDITIONAL CLASSIFICATION AND RATE INSTRUCTIONS: THE CONTRACTOR SHALL COMPLETE ITEMS 3 THROUGH 16, KEEP A PENDING COPY, AND SUBMIT THE REQUEST, IN QUADRUPLICATE, TO THE CONTRACTING OFFICER. 1.TO:ADMINISTRATOR, Employment Standards AdministrationWAGE AND HOUR DIVISIONU.S. DEPARTMENT OF LABORWASHINGTON, D.C. 20210 2.FROM: (REPORTING OFFICE) 3. CONTRACTOR 4. DATE OF REQUEST 5. CONTRACT NUMBER 6. DATE BID OPENED (SEALED BIDDING) 7. DATE OF AWARD 8. DATE CONTRACT WORK STARTED 9. DATE OPTION EXERCISED (IF APPLICABLE) (SCA ONLY) 10. SUBCONTRACTOR (IF ANY) 11. PROJECT AND DESCRIPTION OF WORK (ATTACH ADDITIONAL SHEET IF NEEDED) 12. LOCATION (CITY, COUNTY AND STATE) 13. IN ORDER TO COMPLETE THE WORK PROVIDED FOR UNDER THE ABOVE CONTRACT, IT IS NECESSARY TO ESTABLISH THE FOLLOWING RATE(S) FOR THEINDICATED CLASSIFICATION(S) NOT INCLUDED IN THE DEPARTMENT OF LABOR DETERMINATION NUMBER:DATED: a.LIST IN ORDER: PROPOSED CLASSIFICATION TITLE(S); JOB DESCRIPTION(S); DUTIES;AND RATIONALE FOR PROPOSED CLASSIFICATIONS (SCA ONLY)b. WAGE RATE(S) c. FRINGE BENEFITS PAYMENTS (Use reverse or attach additional sheets, if necessary) 14. SIGNATURE AND TITLE OF SUBCONTRACTOR REPRESENTATIVE (IF ANY) 15. SIGNATURE AND TITLE OF PRIME CONTRACTOR REPRESENTATIVE 16. SIGNATURE OF EMPLOYEE OR REPRESENTATIVE TITLE CHECK APPROPRIATE BOX-REFERENCING BLOCK 13. AGREE DISAGREE TO BE COMPLETED BY CONTRACTING OFFICER (CHECK AS APPROPRIATE - SEE FAR 22.1019 (SCA) OR FAR 22.406-3 (DBA)) THE INTERESTED PARTIES AGREE AND THE CONTRACTING OFFICER RECOMMENDS APPROVAL BY THE WAGE AND HOUR DIVISION. AVAILABLEINFORMATION AND RECOMMENDATIONS ARE ATTACHED. THE INTERESTED PARTIES CANNOT AGREE ON THE PROPOSED CLASSIFICATION AND WAGE RATE. A DETERMINATION OF THE QUESTION BY THE WAGEAND HOUR DIVISION IS THEREFORE REQUESTED. AVAILABLE INFORMATION AND RECOMMENDATIONS ARE ATTACHED. (Send copies 1, 2, and 3 to Department of Labor) SIGNATURE OF CONTRACTING OFFICER OR REPRESENTATIVE STANDARD FORM 1444 (REV. 12-2001)Prescribed by GSA-FAR (48 CFR) 53.222(f) TITLE AND COMMERCIAL TELEPHONE NO. DATE SUBMITED CHECK APPROPRIATE BOX SERVICE CONTRACT CONSTRUCTION CONTRACT AUTHORIZED FOR LOCAL REPRODUCTION PREVIOUS EDITION IS USABLE Public reporting burden for this collection of information is estimated to average 15 minutes per response, including the time for reviewinginstructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden,to the FAR Secretariat (MVP), Office of Acquisition Policy, GSA, Washington, DC 20405; and to the Office of Management and Budget, Paperwork Reduction Project (9000-0089), Washington, DC 20503. OMB No.:9000-0089 Expires: 04/30/2005 KDHE SRF Provisions Page 16 U.S. Department of LaborPAYROLL Employment Standards Administration (For Contractor's Optional Use; See Instructions at www.dol.gov/esa/whd/forms/wh347instr.htm) Wage and Hour Division Persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. NAME OF CONTRACTOROR SUBCONTRACTORADDRESSOMB No.: 1215-0149 Expires: 12/31/2011 PAYROLL NO.FOR WEEK ENDINGPROJECT AND LOCATIONPROJECT OR CONTRACT NO. (1)(2)(3)(4) DAY AND DATE(5)(6)(7)(9) (8) DEDUCTIONS O O O O O O O O NAME AND INDIVIDUAL IDENTIFYING NUMBER (e.g., LAST FOUR DIGITS OF SOCIAL SECURITY NUMBER) OF WORKERNO. OF WITHHOLDiNG EXEMPTIONS WORK CLASSIFICATION OT. OR ST. HOURS WORKED EACH DAY TOTAL HOURS RATE OF PAY GROSS AMOUNT EARNEDFICA WITH-HOLDING TAXOTHER TOTAL DEDUCTIONS NET WAGES PAID FOR WEEK S SS S S S S S Rev. Dec. 2008Rev. Dec. 2008While completion of Form WH-347 is optional, it is mandatory for covered contractors and subcontractors performing work on Federally financed or assisted construction contracts to respond to the information collection contained in 29 C.F.R. §§ 3.3, 5.5(a). The Copeland Act (40 U.S.C. § 3145) contractors and subcontractors performing work on Federally financed or assisted construction contracts to "furnish weekly a statement with respect to the wages paid each employee during the preceding week." U.S. Department of Labor (DOL) regulations at 29 C.F.R. § 5.5(a)(3)(ii) require contractors to submit weekly a copy of all payrolls to the Federal agency contracting for or financing the construction project, accompanied by a signed "Statement of Compliance" indicating that the payrolls are correct and complete and that each laborer or mechanic has been paid not less than the proper Davis-Bacon prevailing wage rate for the work performed. DOL and federal contracting agencies receiving this information review the information to determine that employees have received legally required wages and fringe benefits. Public Burden StatementWe estimate that is will take an average of 55 minutes to complete this collection, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. If you have any comments regarding these estimates or any other aspect of this collection, including suggestions for reducing this burden, send them to the Administrator, Wage and Hour Division, ESA, U.S. Department of Labor, Room S3502, 200 Constitution Avenue, N.W. Washington, D.C. 20210(over)KDHE SRF Provisions Page 17 Date I,(Name of Signatory Party)(Title) do hereby state: (1) That I pay or supervise the payment of the persons employed byon the (Contractor or Subcontractor) ; that during the payroll period commencing on the (Building or Work) day of,, and ending theday of,, all persons employed on said project have been paid the full weekly wages earned, that no rebates have been or will be made either directly or indirectly to or on behalf of said from the full (Contractor or Subcontractor) weekly wages earned by any person and that no deductions have been made either directly or indirectly from the full wages earned by any person, other than permissible deductions as defined in Regulations, Part 3 (29 C.F.R. Subtitle A), issued by the Secretary of Labor under the Copeland Act, as amended (48 Stat. 948, 63 Start. 108, 72 Stat. 967; 76 Stat. 357; 40 U.S.C. § 3145), and described below: (2)That any payrolls otherwise under this contract required to be submitted for the above period arecorrect and complete; that the wage rates for laborers or mechanics contained therein are not less than the applicable wage rates contained in any wage determination incorporated into the contract; that the classifications set forth therein for each laborer or mechanic conform with the work he performed. (3) That any apprentices employed in the above period are duly registered in a bona fideapprenticeship program registered with a State apprenticeship agency recognized by the Bureau of Apprenticeship and Training, United States Department of Labor, or if no such recognized agency exists in a State, are registered with the Bureau of Apprenticeship and Training, United States Department of Labor. (4)That:(a)WHERE FRINGE BENEFITS ARE PAID TO APPROVED PLANS, FUNDS, OR PROGRAMS−in addition to the basic hourly wage rates paid to each laborer or mechanic listed inthe above referenced payroll, payments of fringe benefits as listed in the contracthave been or will be made to appropriate programs for the benefit of suchemployees, except as noted in section 4(c) below.(b)WHERE FRINGE BENEFITS ARE PAID IN CASH−Each laborer or mechanic listed in the above referenced payroll has been paid,as indicated on the payroll, an amount not less than the sum of the applicablebasic hourly wage rate plus the amount of the required fringe benefits as listedin the contract, except as noted in section 4(c) below.(c) EXCEPTIONSREMARKS: EXCEPTION (CRAFT)EXPLANATION NAME AND TITLESIGNATURE THE WILLFUL FALSIFICATION OF ANY OF THE ABOVE STATEMENTS MAY SUBJECT THE CONTRACTOR OR SUBCONTRACTOR TO CIVIL OR CRIMINAL PROSECUTION. SEE SECTION 1001 OF TITLE 18 AND SECTION 231 OF TITLE 31 OF THE UNITED STATES CODE. KDHE SRF Provisions Page 18 WAGE RATE DETERMINATION The wage rate determination found on the following pages must be utilized for the duration of the contract. Each class of workers (including workers in subcontracts) must be paid at least the indicated hourly rate and fringe for such class. If worker compensation includes fringe benefits recognized by the U.S. Department of Labor, then verification of payment of these benefits must be made to the Municipality (Owner) with the first submitted payroll report. If worker compensation does not include fringe benefits then workers must be paid the indicated fringe rate in cash. If a particular class of worker is not listed on the wage rate determination, but is utilized for the project, Standard Form 1444 must be completed by the contractor and submitted to the Municipality (Owner). The U.S. Department of Labor will determine if the wage rate indicated on the submitted Standard Form 1444 is acceptable. Workers must be paid weekly. Any worker who works more than 40 hours a week must be paid one and one- half time the base pay plus all fringe benefits. Weekly payroll reports shall be submitted to the Municipality (Owner) for every week until the job is complete even if no work is performed. The Contractor is responsible for all subcontractor compliance and reporting. KDHE SRF Provisions Page 19 Exhibit D – Allowances EXHIBIT D- Allowances This Exhibit sets out the Allowances under clause 6.4 of the Agreement. 1. Tuck Pointing & Masonry Allowance An Allowance of $30,000 is included in the GMP to address tuck pointing and masonry repair to the two existing Digesters. Existing Digesters 1 & 2 shall be inspected by the Design-Builder and Owner and the extent of repair shall be agreed. Work shall be executed on a Time and Materials basis. Work shall be carried out to make the repairs, with labor, materials and equipment being recorded with these costs being collated and presented for payment against the Allowance. Should the effects of this work include an impact to time then an extension of time shall be issued. Reasonable justification for such an extension of time shall be presented to Owner as part of such a request. The cost impact of the extension of time shall also be recovered from the Allowance. a. Make up of Allowance Cost The following elements of cost shall be included in the cost buildup of any Tuck Pointing & Masonry Allowance item: · Actual reasonable and demonstrable cost, as set out above. · Markups applied by Subcontractors to their costs as appropriate · Associated Insurance and Bond costs · Any associated Sales Tax, if applicable 2. Concrete Repair Allowance An Allowance of $150,000 is included in the GMP to address all repairs required to be made to existing concrete structures, in the execution of the project scope of work. This includes concrete preparation, removal, concrete patch and crack repair activities at existing structures including, but not limited to, BNR Basins, Clarifiers, Digester Control Building and Digesters. Note that this Allowance does not cover repairs to be made to new concrete structures, constructed by Design-Builder. Design Builder shall carry out any such repairs as part of the Cost of the Work. Existing concrete structures shall be inspected by the Design-Builder and Owner and the extent of repair shall be agreed. Work shall be executed on a Time and Materials basis. Work shall be carried out to make the repairs, with labor, materials and equipment being recorded with these costs being collated and presented for payment against the Allowance. Should the effects of this work include an impact to time then an extension of time shall be issued. Reasonable justification for such an extension of time shall be presented to Owner as part of such a request. The cost impact of the extension of time shall also be recovered from the Allowance. a. Make up of Allowance Cost The following elements of cost shall be included in the cost buildup of any Concrete Repair Allowance item: · Actual reasonable and demonstrable cost, as set out above. · Markups applied by Subcontractors to their costs as appropriate · Associated Insurance and Bond costs · Any associated Sales Tax, if applicable 3. Digester Solids Removal Allowance A cost of $123,374 is included in the GMP, to address the removal of Solids/liquid that cannot be drained/removed by the Owner. This sum is based on the removal of 500 cubic yards of material from each of the two digesters (total 1000 and covers the removal from the digester and placement on the adjacent sludge drying bed slab. The Owner is responsible for the disposal of the material from that point. Should the actual amount of material vary from the total 1000 cubic yards then the allowance sum to be paid shall be adjusted based on a volumetric adjustment of $116.90 per Cubic Yard for volumes over 1000 cubic yards, and $84.00 as deduction below 1000 cubic yards. The actual volumetric amount shall be measured in the tank prior to removal. This shall be agreed between the Design-Builder and Owner. Should the effects of this work include an impact to time then an extension of time shall be issued. Reasonable justification for such an extension of time shall be presented to Owner as part of such a request. The cost impact of the extension of time shall also be recovered from the Allowance. a. Make up of Allowance Cost The following elements of cost shall be included in the cost buildup of any Digester Solids Removal Allowance item: · Verified and agreed quantity of material removed · Applied unit rate, as set out above, inclusive of all subcontractor markups · Associated Insurance and Bond costs · Any associated Sales Tax, if applicable 4. Existing Cable Replacement Allowance An Allowance of $50,000 is included in the GMP, to address the replacement of existing control and power cables entering/exiting the existing substations, following DC megger testing. Any cables agreed between the Design-Builder and Owner as requiring replacement following testing shall then be replaced on a time and material basis. Work shall be carried out to make the replacements, with labor, materials and equipment being recorded with these costs being collated and presented for payment. Any temporary works required to maintain plant operations shall also be included for reimbursement under this Allowance. Should the effects of this work include an impact to time then an extension of time shall be issued. Reasonable justification for such an extension of time shall be presented to Owner as part of such a request. The cost impact of the extension of time shall also be recovered from the Allowance. a. Make up of Allowance Cost The following elements of cost shall be included in the cost buildup of any Existing Cable Replacement Allowance item: · Actual reasonable and demonstrable cost, as set out above. · Markups applied by Subcontractors to their costs as appropriate · Associated Insurance and Bond costs · Any associated Sales Tax, if applicable Exhibit E – Rates & Markups Rates – Site Based Staff Rates – Office Based Staff Markups Insurance Markup 0.72% of all other Cost of Work items Design-Builder’s Fee 6.0% of Cost of Work Payment & Performance Bond Cost 0.80% of Project Price (Cost of Work plus Fee) Exhibit F – Insurance & Surety Requirements EXHIBIT INSURANCE AND SURETY REQUIREMENTS I. INSURANCE REQUIREMENTS. The Design-Builder shall obtain, pay for, and maintain, at all times during the performance of the Work until final acceptance thereof, or for such other duration as required, policies of insurance as set forth below, in form and substance acceptable to the Owner. A. General Insurance Terms and Conditions. 1. Subcontractor Insurance. Except with the Owner’s prior written approval or as otherwise provided herein, insurance of the same types and levels of coverage to that required of the Design-Builder, other than Umbrella Liability Insurance, shall be furnished by all Subcontractors to cover their operations performed under any Agreement. The Design-Builder shall maintain Certificates of Insurance from all Subcontractors and make them available to the Owner upon request. The term “Subcontractor” shall include a Subcontractor of any tier. 2. Insurer Requirements, Ratings and Forms. All insurance policies shall be issued by insurance companies rated no less than A- VII in the most recent “Bests” insurance guide, and admitted in the State of Kansas. Except as otherwise specified in the Contract Documents, all such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. 3. Claims Made Policies. If coverage is written on a claims-made basis for any of the policies required by this Agreement, the Design-Builder must maintain the coverage for a minimum of two (2) years from the date of final completion of all work under the Agreement. 4. Premium and Deductible Expenses. The Design-Builder shall be responsible for all premiums and retention or deductible expense for any and all policies required by this Agreement. 5. Additional Insured. Without limiting any rights set out in the Contract Documents, and with the exception of the workers’ compensation, employer’s liability, and professional liability policies, all liability policies shall name the Owner and the Owner’s Representative as additional insureds. All such liability policies carried and maintained by the Design-Builder must be endorsed to be primary to any liability insurance policies carried by the Owner with respect to the Design-Builder’s operations hereunder. Insurance for the additional insureds shall extend to Products/Completed Operations and be as broad as the insurance for the named insured, including defense expense coverage, and shall apply as primary and non-contributory insurance before any other insurance or self-insurance, including any deductible, maintained by, or provided to, the additional insured(s). 6. Waiver of Subrogation. Where allowed by law, waivers of subrogation shall be provided in favor of the Owner, its agents, representatives, officers, officials, and employees, and the additional insureds under the applicable policies, with regard to Commercial General Liability, the Umbrella/Excess Liability, Business Automobile Liability, and Employer’s Liability policies required to be furnished and maintained by the Design-Builder. 7. No Limitation on Liability. The amounts and types of insurance coverage required to be provided by the Design-Builder and Subcontractors herein, including any limitation on the Design-Builder’s obligation to include Owner and related parties as additional insureds on the Design-Builder’s liability policies, shall not be construed to be a limitation on the part of the Design-Builder or any of its Subcontractors. B. Specific Coverage Requirements. 1. Commercial General Liability (“CGL”). The Design-Builder shall maintain CGL coverage written on ISO Occurrence form CG00 01 or an industry equivalent, which shall cover liability arising from Personal Injury, Bodily Injury, Property Damage, Premises and Operations, Products and Completed Operations, Contractual Liability, Independent Contractors and Advertising Injury. The policy limits shall not be less than the following: · Each occurrence $1,000,000 · General aggregate $2,000,000 · Personal and Advertising Liability $1,000,000 · Products/Completed Operations Aggregate $2,000,000 The policy shall contain an endorsement that modifies the general aggregate to apply separately to each project. The Design-Builder shall maintain the Products and Completed Operations liability coverage for a period of at least two (2) years after completion of all work under the Agreement. 2. Business Automobile Liability (“BAL”). The Design-Builder shall maintain BAL coverage written on ISO form CA 00 01 or an industry equivalent. Coverage shall be applicable to all autos and other vehicles subject to compulsory auto liability laws that are owned, hired, rented or used by the Design-Builder and include automobiles not owned by but used on behalf of the Design-Builder. The BAL policy limits shall not be less than the following: · Combined single limit $1,000,000 3. Workers’ Compensation/Employer’s Liability. The Design-Builder shall maintain workers’ compensation and employer’s liability coverage with policy limits not less than the following: · Workers’ Compensation (Coverage Part A) o Statutory · Employer’s Liability (Coverage Part B) o $100,000 each accident o $500,000 disease – policy limit o $100,000 disease – each employee 4. Professional/Errors & Omissions Liability. The Design-Builder shall maintain professional liability insurance covering errors and omissions, including coverage for economic damages arising from the professional services provided by the Design-Builder under the Agreement, with limits of insurance not less than: Each occurrence $1,000,000 Policy aggregate $1,000,000 The policy may not contain separate restrictions for: · Pollution related losses arising from the insured professional services; or · Provisions which would limit the scope of coverage for service performed under the Agreement in subsequent renewals of the professional liability insurance during the performance period or during the five (5) year period after the completion of Work under the Agreement. In the event coverage is provided on a claims-made basis, the professional liability insurance shall be maintained for a period of not less than two (2) years after completion of the Agreement or, in lieu thereof, the Design-Builder shall purchase tail coverage (extended reporting period). 5. Builders Risk/Installation Floater. The Design-Builder shall maintain property insurance, including coverage for the full repair and replacement, for the full insurable value of property being installed, transported, and handled at the work site, temporary locations, and in transit. Such coverage shall be written on a special cause of loss form, and shall cover the perils of water damage (excluding flood) and earthquake. The policy limits shall not be less than the following: · Property/Builders Risk Contract Price · Transit and temporary locations 20% of Contract Price · Engineer, architect or other professional fees 10% of Contract Price The policy shall also: · Include insurance for Boiler/Machinery Breakdown, including testing and start-up operations, on a broad form basis; · Allow for partial utilization of the Work by the Owner; and · Include the interests of the Owner, the Design-Builder, Subcontractors and Sub- subcontractors in the Project, and such other parties as mutually agreed by the Parties to have an insurable financial interest in the Project. 6. Commercial Excess/Umbrella Liability (“CEL”). The Design-Builder shall maintain CEL coverage, written on a follow form basis, covering liability in excess of the Design- Builder’s underlying Commercial General Liability, Business Automobile Liability, and Employer’s Liability policies. The CEL coverage shall be no less broad than the underlying coverage forms, and the maximum self-insured retention under the policy shall be $25,000 for each occurrence. The policy limits shall not be less than the following: · Each occurrence 125% of the Contract Price · General aggregate 125% of the Contract Price 7. Riggers Liability. If the Work includes the provision of crane services, then the Design-Builder’s Commercial General Liability policy shall be amended to apply with minimum limits of liability to insure against bodily injury and property damage arising from the crane operations. The policy shall include coverage for Rigger’s Liability and shall not exclude coverage for damage to property being lifted. The policy limits shall not be less than the following: · Each occurrence Bodily Injury and Property Damage $2,000,000 · Personal Injury $2,000,000 · Aggregate for Products - Completed operations $2,000,000 · General aggregate $2,000,000 Subcontractor’s coverage for crane services may be provided either by the subcontractor’s own policy, or by the policy of a lower tier contractor providing such crane services for the subcontractor. The policy shall include a per project general aggregate. II. SURETY REQUIREMENTS A. The Design-Builder shall furnish a Performance Bond and a Payment Bond meeting all applicable requirements of state law, written by a surety on bond forms satisfactory to the Owner and complying with the specific requirements of the Contract Documents, including the requirements forth below. B. The Design-Builder shall deliver the bonds not later than ten (10) days after execution of the Agreement, or before the Work commences, whichever is earlier. C. Bonds shall guarantee the faithful performance of all the covenants, stipulations, and agreements of the Agreement. Bonds shall be signed by an agent resident in the State of Kansas and date the date of bond shall be the date of execution of the Agreement. D. Each bond shall be in a penal sum which is not less than the Contract Price. E. All bonds shall be originals. The Design-Builder shall require the attorney-in-fact who executes the required Bonds on behalf of the Surety to affix thereto a certified copy of the power-of-attorney. The name, address, and telephone number of a contact person for the bonding company shall be provided.