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HomeMy WebLinkAbout11- Pall Corp. Agreement for Procurement Contracts for Hyalite/Sourdough Water Treatment Plant Membrane Equipment2009/08/31 SECTION 00500 AGREEMENT FOR PROCUREMENT CONTRACTS THIS AGREEMENT is between the City of Bozeman ( "Buyer ") and Pall Corporation ( "Seller "). Buyer and Seller, in consideration of the mutual covenants set forth herein, agree as follows: ARTICLE I - GOODS AND SPECIAL SERVICES 1.1 Seller shall furnish the Goods and Special Services as specified or indicated in the Contract Documents, ARTICLE 2 - THE PROJECT 2.1 The Project for which the Goods and Special Services to be provided under the Contract Documents may be the whole or only a part is generally described as follows: Hyalite /Sourdough Water Treatment Plant Membrane Equipment Procurement - The Work includes the furnishing of goods and special services for a fully functional custom designed membrane filtration system as follows: all labor, materials, equipment, incidentals and appurtenances by the Seller required to design, fabricate, deliver, provide installation assistance, operator training, start -up, test, and place into satisfactory operation. ARTICLE 3 - ENGINEER 3.1 The Contract Documents for the Goods and Special Services have been prepared by HDR Engineering, Inc., who is hereinafter called Engineer and who is to assume all duties and responsibilities, and have the rights and authority assigned to Engineer in the Contract Documents in connection with the furnishing of Goods and Special Services, ARTICLE 4 - POINTS OF DESTINATION 4.1 The place where the Goods are to be delivered as defined in the General Conditions as the Points of Destination is designated as: 7022 Sourdough Canyon Road, Bozeman, MT 59715. 43 44 45 46 47 48 49 50 51 52 53 ARTICLE 5 - CONTRACT TIMES 5.1 Time of the Essence A. All time limits for Milestones, the delivery of Goods and the furnishing of Special Services as stated in the Contract Documents are of the essence. The statement herein that time is of the essence shall not be construed to limit the Seller's cure rights as set forth in the Contract Documents upon default, or any other provision of the Contract Documents or under applicable law that would afford Seller a time certain or a reasonable time to perform its contractual obligations. 5.2 Dates for Goods and Special Services A. Special Services required by the Contract Documents will be performed pursuant to Schedules E and F contained in the Procurement Bid Form. 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement - AGREEMENT FOR PROCUREMENT CONTRACTS 00500- 1 1. Seller shall be provided a minimum of 30 days notification prior to each activity requiring such Services. 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 B. The Goods are to be delivered FOB to the Point of Destination and ready for Construction. Delivery date shall be coordinated with the Contractor prior to shipment, Contractor's receipt of delivery is estimated to occur as listed in Schedule E of the Procurement Bid Form. C. Upon receipt of Buyer's Notice to Proceed with Fabrication that satisfies Seller's requirements for meeting the delivery schedule, Seller shall commence fabrication of equipment. The place of delivery specified therein shall be firm and fixed, provided that Buyer may notify Seller no later than 45 days prior to the scheduled shipment date of the products of an alternate point of delivery (the "Alternate Delivery Site"), Provided the parties agree to a Variation to take into account any additional cost [or delay] incurred by Seller in implementing this change, the Alternate Delivery Site shall become the agreed place of delivery for all purposes under this Agreement. In such event the following conditions shall apply: (i) title and risk of loss shall pass to the Buyer upon delivery of the products to the Alternate Delivery Site; (ii) any amounts payable to the Seller upon delivery or shipment shall become payable upon delivery of the products to the Alternate Delivery Site; (iii) any additional expenses incurred by the Seller in connection with such shipment to storage shall become payable by the Buyer upon submission of the Seller's invoice(s) (including but not limited to costs of any additional transportation, preparation for and placement into storage, handling, inspection, preservation, insurance, storage, removal charges and any applicable taxes); (iv) transportation of the products from the storage facility to their place of installation shall be the Buyer's responsibility; and, (v) if the Contract includes Services, subject to the terms and conditions in the Contract the Seller shall resume provision of Services to Buyer when instructed to do so by Buyer provided that all amounts due hereunder plus any cost incurred by Seller in delaying such Services have been paid, 5.3 Liquidated Damages A, Buyer and Seller recognize that time is of the essence of this Agreement and that Buyer will suffer financial loss if the Goods are not delivered at the Point of Destination and ready for receipt of delivery by Buyer within the times specified in Schedule E of the Procurement Bid Form, plus any extensions thereof allowed in accordance with Article 7 of the General Conditions. The parties also recognize that the timely performance of services by others involved in the Project are materially dependent upon Seller's specific compliance with the requirements of Paragraph 5.3 C. Further, they recognize the delays, expense and difficulties involved in proving the actual loss suffered by Buyer if complete acceptable Goods are not delivered on time. Accordingly, instead of requiring such proof, Buyer and Seller agree that as liquidated damages for delay (but not as a penalty) Seller shall pay Buyer $ 1000.00 for each calendar day that expires after the time specified in Paragraph 5.2 A for delivery of each item of acceptable Goods. Liquidated damages shall also be applicable to the times specified for, each item, defined in Paragraph 5.2 B ($I 000.00/day). The maximum total amount for liquidated damages shall be limited to 15 percent of the Total Contract Price in Article 6. B. The liquidated damages provided in this Section shall be Buyer's sole and exclusive remedy for Seller's late delivery of Goods and Special Services, C. If Seller is prevented from achieving the delivery times, milestone submittal dates or response times as defined in Articles 5.2 A, and 5.2 B, for any reason beyond Seller's reasonable control and not attributable to its actions or inactions. Seller shall not be assessed liquidated damages and shall be entitled to an adjustment of the Contract Times in an amount equal to the duration of the reason or event causing the delay in delivery. ARTICLE 6 - CONTRACT PRICE 0088tt4 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement AGREEMENT FOR PROCUREMENT` CONTRACTS 00500-2 4 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 M-1 Buyer shall pay Supplier for furnishing the Goods and Special Services in accordance with the I'm Contract Documents in current funds pursuant to Article 7 contained herein. A. The Contract price is: Five Million Five Hundred Fifty Eight Thousand Three Hundred dollars $(5,558,300.00). (words) B. Supplier shall pay all applicable taxes and duties. C. The Contract Price for membrane units and ancillary equipment shall remain valid for 400 days after the effective date of the agreement. If the "Notice to Commence Fabrication" is issued after 400 days from the effective date of the Agreement (up to a maximum of 3 years), the Contract Price will be adjusted through Change Order. Contract Price adjustment will be the ratio of the Consumer Price Index (CPI) of the CPI of month that the "Notice to Commence Fabrication" is issued, to the CPI of 400 days after the effective date of the Agreement. D. Membrane modules shall be made available for purchase by the Buyer at the pricing offered in the Procurement Bid Form and that the pricing for future membrane modules, as part of a warranty claim or replacement purchase, shall be in accordance with the methods described in Sections 00301, Procurement Cost Development Worksheet and 01740, Membrane System and Module Warranty, Membrane Module Pricing shall remain effective for a period of 20 years after the proposal date. 6.2 Seller agrees it will not proceed with Bid Item AI. until provided with a Notice to Proceed with Special Services from Buyer. 6.3 Seller agrees it will not proceed with Bid Item A2 and Bid Item A3 until provided with a Notice to Proceed with Fabrication from Buyer. 6.4 Seller understands that Buyer may or may not purchase Bid Items A2 and A3 from Seller. The decision whether or not to proceed with Bid Items A2 and A3 will be made by Buyer based on the outcome and Installation Contract Bid. 6.5 Seller agrees that if Buyer does not purchase Bid Item A2 and Bid Item A3 (based on Article 6.4), Seller will reduce Contract Price by the sum shown on Bid Schedule A for these respective Bid items. ARTICLE 7 - PAYMENT PROCEDURES 7.1 Submittal and Processing of Payments A. Seller shall submit Applications for Payment in accordance with Article 10 of the General Conditions, Applications for Payment will be processed by Engineer as provided in the General Conditions, If the Procurement Contract is Assigned to the Contractor, Applications for Payment will be processed through the Contractor. 7.2 Progress Payments A. Buyer shall make progress payments on account of the Contract Price on the basis of Seller's Applications for Payment as follows: 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement - AGREEMENT FOR PROCUREMENT CONTRACTS 00500-3 1 2 3 4 Partial payments will be made per schedule below, 7.3 Final Payment A. Upon receipt of the final Application for Payment accompanied by Engineer's recommendation of payment in accordance with Paragraph 10.06 of the General Conditions, Buyer shall pay the remainder of the Contract Price as recommended by Engineer. Payment Schedule Payment Contract Milestone(s) Percent of Bid Sixth Application Notice to Commence Fabrication +120 Days Item A 1. First Application Delivery of Initial P&ID Submittal 25 Second Application Delivery of Single-line Piping Submittal 25 Third Application Delivery of Electrical Power, Instrumentation 25 Tenth Application Power and Control Wiring, and Electrical 15 Eleventh Application Equipment Data Technical Cut Sheets 10 Final Application Submittal 5 Fourth Application Delivery of all Final Submittals 25 Payment Contract Milestone(s) Percent of Bid Items A2. + A3. Fifth Application Notice to Commence Fabrication +60 Days 15 Sixth Application Notice to Commence Fabrication +120 Days 15 Seventh Application Notice to Commence Fabrication +180 Days 10 Eighth Application Notice to Commence Fabrication +270 Days 10 Ninth Application Delivery of Goods 20 Tenth Application Delivery of Membrane Modules 15 Eleventh Application Notice of Completed Commissioning 10 Final Application Delivery of Final O&M Manuals and Notice 5 of Substantial Completion 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 ARTICLE 8 - INTEREST 8.1 Subject to the provisions of Article 10 of the General Conditions, all monies not paid within 90 days after the receipt of the Seller's Application for Payment shall accrue interest at the rate amount allowed by state law. ARTICLE 9 - SELLER'S REPRESENTATIONS 9.1 In order to induce Buyer to enter into this Agreement, Seller makes the following representations: A. Seller has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. If specified or if, in Seller's judgment, any local condition may affect cost, progress or the furnishing of the Goods and Special Services, Seller has visited the Point of Destination and become familiar with and is satisfied as to the local conditions that may affect cost, progress or the furnishing of the Goods and Special Services. C. Seller is familiar with and is satisfied as to all local federal, state and local Laws and Regulations that may affect cost, progress and the furnishing of the Goods and Special Services. D. Seller has carefully studied and correlated the information known to Seller, and information and observations obtained from Seller's visits, if any, to the Point of Destination, with the Contract Documents. 0088114 City of Bozeman 14yalite/Sourdough Treatment Plant Membrane Equipment Procurement - AGREEMENT FOR PROCUREMENT CONTRACTS 00500-4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 E. Seller has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Seller has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Seller, F. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for furnishing Goods and Special Services, G. The SELLER has provided test data from pilot test data as information and design concepts for its proprietary membrane system. In providing the information and design concepts for this Project, the SELLER has considered and incorporated the concept of "linear scalability" into its design. Linear scalability means that: 1) the SELLER has considered and evaluated the design and operational requirements and results of pilot or demonstration testing, and 2) that the equipment provided by the SELLER is warranted to produce water in proportion to the design and operational parameters established and demonstrated during pilot testing, H. The concept of linear scalability relates to the surface area of the membrane and to its corresponding ability to produce water as a dependent variable on an incremental and proportional basis. Dependant variables are the parameters of specific or instantaneous design (e.g. membrane flux, process flows, temperatures, times, maximum pressures, and chemical dosages or consumption) requirements for filtration, backwashing, cleaning, and integrity testing processes that are established on a module basis during piloting and/or incorporated into the unit and system design provided by the SELLER to meet the design capacity requirements established in the Contract Documents, I. The concept of linear scalability excludes the independent variables that involve membrane removal performance and overall system performance established in the Contract Documents, Such independent variables include the water quality removal requirements, removal efficiency, and the minimum design requirements for Maintenance/Recovery Clean interval when the membrane system is operated within its intended process design range. J. SELLER's relationship to the BUYER in performance of this Agreement is that of an Independent Contractor. The personnel performing services under this Agreement shall at all times be under the SELLER's exclusive direction and control and not employees of the BUYER. SELLER shall pay all wages, salaries and other amounts due to its employees in connection with this agreement and shall be responsible for all applicable state, federal, and local reports and obligations respecting them such as labor wages, social security, income tax withholding, workers' compensation insurance, unemployment compensation and similar matters. ARTICLE 10 - CONTRACT DOCUMENTS 10,1 Contents A. The Contract Documents consist of the following: 1. This Agreement; 1 Procurement Bid Form; 3. Performance Bond; 4. Payment Bond; 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement - AGREEMENT FOR PROCUREMENT CONTRACTS 00500-5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 5, General. Conditions; 6. Supplementary Conditions; 7. Funding Agency Special Provisions for Montana Public Facilities; 8. Specifications as listed in table of contents. 9, Drawings 10. Addenda (Numbers I to 1, inclusive); 11. Exhibits to this Agreement (enumerated as follows): a, Exhibit A- I to Agreement between Buyer and Seller dated 7/: Assignment of Contract; Consent to Assignment; and Acceptance of Assignment. b, Exhibit A-2 to Agreement between Buyer and Seller dated Agreement to Assignment by Seller's Surety. C, Documentation submitted by Seller prior to Notice of Award, including; 1) Letter from HDRto Pall dated April 21, 2010. 2) Letter from Pall to HDR dated April 26, 2010. 12. The following which maybe delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a. Notice to Proceed; b. Written Amendment(s); c. Change Order(s); d, Field Order(s); el Engineer's Written Interpretation(s), B, The documents listed in Paragraph 10.1.A are attached to this Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 10. D. The Contract Documents may only be amended, or supplemented as provided in Paragraph 3.04 of the General Conditions. ARTICLE I I - MISCELLANEOUS 11.1 Defined Terms A. Terms used in this Agreement will have the meanings indicated in Section 11300, the General Conditions and the Supplementary Conditions. 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement - AGREEMENT FOR PROCUREMENT CONTRACTS 00500-6 11.2 Assignment A. Buyer has the right to assign the Contract for furnishing Goods and Special Services hereunder and Seller shall accept such assignment. Forms documenting the assignment of the Contract, and consent of Seller's surety to the assignment are attached as exhibits to this Agreement. The Contract will be executed in the name of Buyer initially, and will be assigned to a Contractor designated by Buyer. The assignment will occur on the effective date of the agreement between Buyer and the Contractor, which is expected to occur March of 2011. As of the date of acceptance of assignment by the Contractor, all references in the Contract Documents to Buyer shall mean the designated Contractor whose responsibilities will include the installation and erection of the Goods. 2. The assignment of the Contract shall relieve Buyer from all further obligations and liabilities under the Contract. After assignment, Seller shall become a subcontractor or supplier to the assignee and, except as noted herein, all rights, duties, and obligations of Buyer under the Contract shall become the rights, duties and obligations of the assignee, After assignment: a. All performance warranties and guarantees required by the Contract Documents will continue to run for the benefit of Buyer and, in addition, for the benefit of the assignee, b. Except as provided below, all rights, duties and obligations of Engineer to assignee and Seller under this Contract will cease. I ) Engineer will review Seller's Applications for Payment and make recommendations to assignee for payments as provided in Paragraphs 10.02 and 10.06 of the General Conditions. 2) Upon the written request of either the assignee or Seller, Engineer will issue with reasonable promptness such clarifications or interpretations of the Contract Documents, which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents. Such written clarifications and interpretations will be final and binding on assignee and Seller unless: a) an appeal from Engineer's clarification or interpretation is made within the time limits and in accordance with the dispute resolution procedures set forth in Article 13 of the General Conditions; or b) if no such dispute resolution procedures have been set forth, a written notice of intention to appeal is delivered by assignee or Seller to the other within 30 days after the date of such decision, and a formal proceeding is instituted by the appealing party in a forum of competent jurisdiction within 60 days after the date of such decision (unless otherwise agreed to in writing by assignee and Seller), to exercise such rights or remedies as the appealing party may have with respect to such clarification or interpretation in accordance with applicable Laws and Regulations. 3) When rendering a clarification or interpretation under Paragraph 11.2.A.3.13,2), Engineer will not show partiality to assignee or Seller and will not be liable in connection with any clarification or interpretation rendered in good faith. C. Upon assignment, Seller shall provide Contractor with revised insurance certificates listing both Contractor and Buyer as additional insureds. 0088114 City of Bozeman Hyalite /Sourdough Treatment Plant Membrane Equipment Procurement - AGREEMENT FOR PROCUREMENT CONTRACTS 00500-7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 26 27 28 29 30 31 B. No other assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound. Specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law). Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 11.3 Successors and Assigns A. Buyer and Seller each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents. 11.4 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Buyer and Seller. The Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 11.5 Limitations of Liability A. Notwithstanding any other provisions of the Contract Documents, the Supplier's total liability for direct, indirect, incidental, consequential, special, punitive or other damages arising at any time under any of the Contract Documents or otherwise in connection with completing the Contract (whether arising under breach of contract, tort, strict liability, or any other theory of law) shall not exceed two times the amount of the Contract Price. 0088114 City of Bozeman Hyalite /Sourdough Treatment Plant Membrane Equipment Procurement - AGREEMFNT FOR PROCUREMENT CONTRACTS 00500-8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 IN WITNESS WHEREOF, Buyer and Seller have signed this agreement in duplicate. One counterpart each has been delivered to Buyer and Seller. All portions of the Contract Documents have been signed or identified by Buyer and Seller or on their behalf. Buyer: , ,, e�** " By: Title p4, .fir ,� Executed on d f �, i I« (t,yGyear) A4 ATTEST BY: Title - APPROVED AS O "F�6 ac Selk By: Atte, Addy 1 , 1 Agent for service of process: (1f Seller is a corporation or a partnership, attach evidence of authority to sign.) 0088114 City of Bozeman Flyalite /Sourdough Treatment Plant Membrane Equipment Procurement - AGRFEMENTFOR PROCUREMENT CONTRACTS 00500-9 EXHIBIT A -I to Agreement Between Buyer and Seller Dated: ASSIGNMENT OF CONTRACT; CONSENT TO ASSIGNMENT; AND ACCEPTANCE OF ASSIGNMENT This assignment will be effective on the Effective Date of the Agreement between the Buyer and the Contractor. The Contract etween the City of Bozeman,MT ( "Buyer ") and 14 G" !'�" t In ( "Seller ") for furnishing Go s and Special Services under the Contract Documents entitled "Hyalite/Sourdough Water Treat gent Pknt - embrT. e Ecl ipment Procurement" is hereby assigned, transferred, and set over to A c , ( "Contractor "). The Contractor shall be totally responsible for the performance of Seller and for the duties, rights and obligations of Buyer, not otherwise retained by Buyer, under the terms of the Contract between Buyer and Seller. Upon assignment of this Procurement Agreement, Seller agrees to perform its obligations and duties to Buyer under the supervision and control of and as a subcontractor or supplier to the Contractor. ASSIGNMENT DIRECTED BY: (If Buyer is a corporation, attach evidence of authority to sign. If Buyer is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of Buyer - Seller Agreement.) owl im es By: (N j\A1 � / X Title: s Executed on /5 , 201y" ASSIGNMENT ACKNOWLEDGED ACKNOWLEDGED AND ACCEPTED BY: (If Seller is a corporation, attach evidence of authority to sign.) ASSIGNMENT ACCEPTED BY: (If Contractor is a corporation attach evidence of authority to sign.) eI ler Contractor 0088114 City of Bozeman Hyalite /Sourdough Treatment Plant Membrane Equipment Procurement - AGREEMENT FOR PROCUREMENT CONTRACTS 00500-10 Bond. No. 105456043 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 EXHIBIT A -2 to Agreement Between, Buyer and Seller April 6 2031 Dated: AGREEMENT TO ASSIGNMENT BY SELLER'S SURETY Surety hereby acknowledges and agrees that the Contract for furnishing Goods and Special Services under the Contract Documents entitled "Hyalite/Sourdough Water Treatment Pant Membrane Equipment Procurement" by and between. the City of Bozeman, MT (`Buyer ") and Pall Corporation v ( "Seller") may be assigned, transferred, and set over to B0R Engineering, Inc. ( "Contractor "), in accordance with Paragraph 11.2 of Agreement between Buyer and Seller. Surety further agrees that, upon assignment of the Contract, the Contractor shall have all the rights of the Buyer under the Performance Bond. and Payment bond. (Corporate Seal) surety r Trave It Surety Company of America Company: By: _ . 1) Stacy Rivera l ji na an Title Attorney -Tn -Fact (AkAch Polder of A,ttorne3 �- END OF SECTION 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement - AGREENiENT FOR PROCUREMENT CONTRACTS 00500'- 11 ATTORNEY A l ' p POWER OF ATTORNEY TRAVELERS I Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company Attorney -In Fact No. 222507 THE St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Certificate No. 0 KNOW ALL MEN BY THESE PRESENT'S: That St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St, Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company. Travelers Casualty and Surety Company, and Travelers Casually and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized, under the laws of the State of Wisconsin (berein collectively called the "Companies "), and that the Companies do hereby make, constitute and appoint Jeannette Porrini, and Stacy Rivera of the City of �0 •� , State of ConneZ irnt _ , their true and 'lawful Attomey(s) -in -Pact, each in their separate capacity if more than one is named above, to sign, execute„ seal and acknowledge any and all bonds„ recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guarantecin the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed, this day of June , 2010 Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine 'Insurance Company St. Paul Guardian Insurance Company 8th St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of'America United States Fidelity and Guaranty Company ORA),;, a��'�+,ryta ) 1e aAarFORII, tyIO SE" �e SEAL m r , State of Connecticut City of Hartford ss. By: -7 Thompson. nior ice President Can this the y nth day of June 2010 , before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company. Fidelity and Guaranty Insurance Company. ;Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. �t�,711i'Tq In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2011. 1.1�+ 58440 -4 -09 Printed in U.S.A. THIS POWER OF ATTORNEY IS INVALID � c . t vl , a C. Tctreault. Notary Public THE RED WARNING: THIS POWER o+ ATTORNEY mINVALID This Power m Attorney is granted under and bythe authority uthe followin resolutions adopted by the Boards of Directors of Farmington Casualt Company, Fidelit and Guaranty Insurance Company, Fidelit and mu^mmy Insurance Underwriters, Inc., m. Paul Fire and Marine Insurance Company, xt.puo Guardian Insurance Company, St. Paul Mercury Insuran Company, Travelers Casualty and Surety Company, Travelers Casualty arid Surety cwop^uvor America, arid United States Fidelity and Guaranty Company. which resolutions are now in full force and cffeet, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any u°^oou v=c President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appoint s authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said offic or the Board of Directors at any [line may remove any such appointee and revoke the power given him o, her; and ais mmm7nER RESOLVED, that the Chairma the President, an Vice Chairman, any Executive Vice eoc�ix*nt. any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writin and a copy thereof is filed in the office mr the Secretary � and 8i, rnnzHmR RESOLVED, that any bond, recognizance, contract of indemnity or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the Pre any Vice Chairman, mwExecou`e`w=mm,mvot,omyxcnimmuupoxidento,mw`ecu President, any Second Vice President, the Treasurer, any Assistant Treasurer the Corporate Secretary or any Assistant Secretary and duly attested and scaled with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more moow*vy unauem pursuant to u written dele of authority and it is FURTHER RESOLVED, that the signature of each of the following officers� President, any Executive Vice President, any Senior Vice President, any Vice President. any Assistant Vice President, any Secretary, my Assistant Secretary, and the seal of the Company may be affixed by fac to any Power ofAttome or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory /o the nature thereof, and uny such Power of Attorney or certificate bearing such facsimile signature ", facsimile ^"u| shall he valid and binding upon the Company andany such power so executed and certified by such facsimile signature and oc,^oiz"sem shall w valid arid binding ^u the Company inthe future with respect to any bond or understanding m which ai,attached. I, Kett M. Johanson, the uDdersigned,Assistant Secretary, ofFarmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, mc Paul Fire arid Marine Insurance Company, St. Paul. Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company ofAnierica, and United States Fidelity and Guaranty Company uv hereby certify that the above kind foregoing /,u true arid correct copy ,x the Power orAumm"y executed by said cooponio*. which is full force arid effect arid has not been revoked. IN TESTIMONY WoEREOp/hive hereunt set my hand and affixed the sea�sw said Companies this day of 20 Kori M. Johans Assistant �Secretary� SEA J Si To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact usm�ravelersborld.com.Please refer m the ��Fact. number, the above-named individuals and the details m the bond m which the power is attached. ATTORNEY Any singular reference to Seller, Surety, Buyer or other party shall be considered plural where applicable. SELLER (Name and Address): Pall Corporation 25 Harbor Park Drive, p or t W as hi ng t on, BUYER (Name and Address): City of Bozeman 121 North Rouse F0 Box 1230 M-00 SURETY (Name and Address of Principal Place of Business)- NY 11050 Travelers Casualty and Surety Company of America One Tager Square Hartford, CT 06183 Description (Name and Location): Bozeman Hyalite/Sourdough Water Treatment Plant Membrane System BOND Ih/11 Date (Not earlier than Contract Date): Bond Number: 105456093 Amount: $5,558,300.00 Modifications to this Bond Forra. No Surety and Seller, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do each cause this Performance Bond to be duly executed on its behalf by its authorized officer, agent or representative. Seller as Princi I Surety Company.- Pall rporation (Corp. S 1) Company: Travelers Casualty and - (Corp. Seal) Signature Signature. Surety f America Name and Ti k v ? Name d Title: PO ALT)7]Fact Lro aec'3 (Att ch Power of orne r CT 06183 Addre Addre Telephone Number: 866-40D-8396 (Space is provided below for signatures of additional parties, if required.) Seller as Principal Surety Company: (Corp. Seal) Company: (Corp. Seal) Signature. Signature: Name and Title: Name and Title: Address: Telephone Number, MCDC No. P-610 (2000 Edition) 0088114 City of Bozeman Ilyalite/Sourdough Treatment Plant Membrane Equipment Procurement — PEFOR MANCE BOND FOR PROCUREMENT CONTRACTS 00610-1 1. Seller and Surety, jointly and severally, bind themselves, their heirs„ executors, administrators, successors and assigns to Buyer for the performance of the Contract, which is incorporated herein by reference. For purposes of this bond, Buyer means Buyer's assigns, if and when Buyer has assigned the Contract. 1 If Seller performs the Contract, Surety and Seller have no obligation under this Bond, except to participate in conferences as provided in paragraph 3.1. 1 If there is no Buyer Default, Surety's obligation under this Bond shall arise after: 3.1. Buyer has notified Seller and Surety pursuant to paragraph 10 that Buyer is considering declaring a Seller Default and has requested and attempted to arrange a conference with Seller and Surety to be held not later than 15 days after receipt of such notice to discuss methods of performing the Contract. (If Buyer, Seller and Surety agree, Seller shall be allowed a reasonable time to perform the Contract, but such an agreement shall not waive Buyer's right, if any, subsequently to declare a Seller Default); and 3.2. Buyer has declared a Seller Default and formally terminated Seller's right to complete the Contract. Such Seller Default shall not be declared earlier than 20 days after Seller and Surety have received notice as provided in paragraph 3.1; and 3.3. Buyer has agreed to pay the Balance of the Contract Price to: 1. Surety in accordance with the terms of the Contract; 2. Another seller selected pursuant to paragraph 4.3 to perform the Contract. 4. When Buyer has satisfied the conditions of paragraph 3, Surety shall promptly and at Surety's expense take one ofthe following actions: 41. Arrange for Seller, with consent of Buyer, to perform and complete the Contract; or 4.2. Undertake to perform and complete the Contract itself, through its agents or through independent contractors; or 43.. Obtain bids or negotiated proposals from qualified sellers acceptable to Buyer for a contract for performance and completion of the Contract, arrange for a contract to be prepared for execution by Buyer and Seller selected with Buyer's concurrence, to be secured, with performance and payment bonds executed by a qualified surety equivalent to the Bonds issued on the Contract, and pay to Buyer the amount of damages as described in paragraph 6 in excess of the Balance of the Contract Price incurred by Buyer resulting from Seller Default; or 4.4. Waive its right to perform and complete, arrange for completion, or obtain a new seller, and with reasonable promptness under the circumstances, either: 1. determine the amount for which it may be liable to Buyer and, as soon as practicable after the amount is determined, tender payment therefor to Buyer; or 2. deny liability in whole or in part and notify Buyer citing reasons therefor, 5. If Surety does not proceed as provided in paragraph 4 with reasonable promptness, Surety shall be deemed to be in default on this Bond 15 days after receipt of an additional written notice from Buyer to Surety demanding that Surety perform its obligations under this Bond, and Buyer shall be entitled to enforce any remedy available to Buyer. If Surety proceeds as provided in paragraph 44, and Buyer refuses the payment tendered or Surety has denied liability, in whole or in part, without further notice Buyer shall be entitled to enforce any remedy available to Buyer. 6, After Buyer has terminated Seller's right to complete the Contract, and if Surety elects to act under paragraph 4.1, 4.2, or 4.3, then the responsibilities of Surety to Buyer shall not be greater than those of Seller under the Contract, and the responsibilities of Buyer to Surety shall not be greater than those of Buyer under the Contract, To a limit of the amount of this Bond, but subject to commitment by Buyer of the Balance of the Contract Price to mitigation of costs and damages on the Contract, Surety is obligated without duplication for: 6.1. The responsibilities of Seller for correction or replacement of defective Goods and Special Services and completion of the Contract; 6.2. Additional legal, design professional and delay costs resulting from Seller's Default, and resulting from the actions or failure to act of Surety under paragraph 4; and 6.3. Liquidated damages, or if no liquidated damages are specified in the Contract, actual damages caused by delayed performance or non- performance of Seller. 7. Surety shall not be liable to Buyer or others for obligations of Seller that are unrelated to the Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than Buyer or its heirs, executors, administrators, successors, or assigns. 8. Surety hereby waives notice of any change, including changes of time, to the Contract or to related subcontracts, purchase orders and other obligations. 9. Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the Goods and Services are located and shall be instituted within two years after Seller Default or within two years after Seller ceased working or within two years after Surety refuses or fails to perform its obligations under this Bond, whichever occurs first, If the provisions of this paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 10. Notice to Surety, Buyer or Seller shall be mailed or delivered to the address shown on the signature page. 1I. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the Goods were to be delivered and the Special Services were to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond.. 12. Definitions, 12.1. Balance of the Contract Price: The total amount payable by Buyer to Seller under the Contract after all proper adjustments have been made, including allowance to Seller of any amounts received or to be received by Buyer in settlement of insurance or other Claims for damages to which Seller is entitled, reduced by all valid and proper payments made to or on behalf of Seller under the Contract. 12.2. Contract: The agreement between Buyer and Seller identified on the signature page, including all Contract Documents and changes thereto. 12.3. Seller Default: Failure of Seller, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Contract. 0088114 City of Bozeman llyalitclSourdough Treatment Plant Membrane Equipment Procurement — PEFORMANCE BOND FOR PROCiIJREMENT CONTRACTS O0610 -2 12.4. Buyer Default: Failure of Buyer, which has neither been remedied nor waived, to pay Seller as required by the Contract or to perform and complete or comply with the other terms thereof. 0089114 City of Bozeman Hyalitc/Sourdough Treatment Plant Membrane Equipment Procurement — PEFORMANCE BOND FOR PROCUREMENT CONTRACTS 00610-3 PAYMENT BOND FOR PROCUREMENT CONTRACTS Any singular reference to Seller, Surety, Buyer or other party shall be considered plural where applicable. SELLER (Name and Address): Pan Corporation 25 Harbor Park Drive Port Washington, NY 11050 BUYER (Name and Address): City of Bozaim 121 North Rouse, PO Box 1230 Bozeman, W 59771 SURETY (Name and Address of Principal Place of Business): Travelers Casualty and Surety Ccqmy of Anierlca One Tower Square Hartford, CT 06183 CONTRAC Date: Amount�5,55$, Description (Name and Location): Bozeman Hyalite/Sourdough Water Treatment Plant Membrane System BOND Date (Not earlier than Contract Date): Bond Number. 105456()93 Amount: $5,558,300.00 Modifications to this Bond Form: See Attached Rider I Surety and Seller, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do each cause this Payment Bond to be duly executed on its behalf by its authorized officer, agent or representative. Seller as Principal Surety Company: p I rwration, (Corp. Seal) Company: Travelers tY and (Corp. Seal) Surety o rica Signature-, ,/� Signature. Name and Tit Name d Title — (A ch Power of A Add s:0ne r Sq ord, Cr 06183 Telephone Number: ffk4M-8396 (Space is provided below for signatures of additional parties, if required.) Seller as Principal Surety Company. (Corp. Seal) company: (Corp. Seal) Signature: Signature: Name and Title: Name and Title: Address: EJCDC No. P (2000 Edition) Telephone Number: 0088114 City of Bozeman Hyalite /Sourdough Treatment Plant Membrane Equipment Procurement PAYMEN'r BOND FOR PROCURMENT CONTRACTS 00615-1 I . Seller and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to Buyer to pay for labor, materials and equipment fumished for use in the performance of the Contract, which is incorporated herein by reference. For purposes of this bond, Buyer means Buyer's assigns, if and when Buyer has assigned the Contract, 2. With respect to Buyer, this obligation shall be null and void if Seller: 2.1. Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2. Defends, indemnifies and holds harmless Buyer from all claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Contract, provided Buyer has promptly notified Seller and Surety (at the addresses described in paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to Seller and Surety, and provided there is no Buyer Default. 3. With respect to Claimants, this obligation shall be null and void if Seller promptly makes payment, directly or indirectly„ for all sums due. 4. Surety shall have no obligation to Claimants under this Bond until: 4.1. Claimants who are employed by or have a direct contract with Seller have given notice to Surety (at the addresses described in paragraph 12) and sent a copy, or notice thereof, to Buyer stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2. Claimants who do not have a direct contract with Seller: 1, have furnished written notice to Seller and sent a copy, or notice thereof, to Buyer, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the anrount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and 8.. Amounts owed by Buyer to Seller under the Contract shall be used for the performance of the Contract and to satisfy claims, if any, under any Performance Bond. By Seller furnishing and Buyer accepting this Bond, they agree that all funds earned by Seller in the performance of the Contract are dedicated to satisfy obligations of Seller and Surety under this Bond, subject to Buyer's priority to use the funds for the completion of the furnishing the floods and Special Services. 9. Surety shall not be liable to Buyer, Claimants or others for obligations of Seller that are unrelated to the Contract. Buyer shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10. Surety hereby waives notice of any change, including changes of time, to the Contract or to related Subcontracts, purchase orders and other obligations. 11. No suitor action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the Goods relevant to the claim are tocated or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Paragraph 4.1 or paragraph 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Contract, whichever of (1) or (2) first occurs, If the provisions of this paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12. Notice to Surety, Buyer or Seller shall be mailed or delivered to the addresses shown on the signature page. Actual receipt of notice by Surety, Buyer or Seller, however, accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the Contract was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is, that this Bond shall be construed as a statutory Bond and not as a common law bond. 2. Have either received a rejection in whole or in part from Seller or 14. Upon request of any person or entity appearing to be a potential not received within 30 days of furnishing the above notice any beneficiary of this Bond, Seller shall promptly furnish a copy of this Bond or communication from Seiler by which Seller had indicated the shall permit a copy to be made, claim will be paid directly or indirectly; and 15. Definitions 3. Not having been paid within the above 30 days, have sent a written notice to Surety and sent a copy, or notice thereof, to Buyer stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to Seller. S. If a notice required by paragraph 4 is given by Buyer to Seller or to Surety, that is sufficient compliance. 6. When a Claimant has satisfied the conditions of paragraph 4, Surety shall promptly and at Surety's expense take the following actions: 61. Send an answer to the Claimant, with a copy to Buyer, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. 15.1. Claimant: An individual or entity having a direct contract with Seller or with a Subcontractor of Seller to fumish labor„ materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, hcat, oil, gasoline, telephone service or rental equipment used in the Contract, architectural and engineering services required for furnishing the Goods and Special Services by Seller and Seller's Subcontractors, and all other items for which a mechanic's hen may be asserted in the jurisdiction where the labor, materials or equipment were furnished, 15.2. Contract: The agreement between Buyer and Seller identified on the signature page, including all Contract Documents and changes thereto. 15-3. Buyer Default: Failure of Buyer, which has neither been remedied 6.1 Pay or arrange for payment of any undisputed amounts. nor waived, to pay Seller as required by the Contract or to perform . and complete or comply with the other terms thereof. 7. Surety's total obligation shall not exceed the amount of this Bond, and the amount of this bond shall be credited for any payments made in good faith by Surety.. 0088114 City of Bozeman Hyalite/.Sourdough Treatment Plant Membrane Equipment ProcurementErrorl Unknown document property name, PAYMENT BOND FOR PROCUIrMENT CONTRACTS 00615 -2 PAYMENTBONJ RIDER TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Hartford, Connecticut 06183 This Rider is executed concurrently with and shall be attached to and form a part of Payment Bond No. 105456093 (hereinafter referred to as the "Payment Bond "). WHEREAS, on or about the day of 20 , Pall Corporation (hereinafter referred to as "Principal ") entered into a written agreement with City of Bozeman ( "Obligee "), for Bozeman 14yalite /Sourdough Water Treatment Plant Membrane System (hereinafter referred to as "Contract "); and WHEREAS, the Principal is obligated under the Contract to provide a payment bond in connection with the Contract naming City of Bozeman as Obligee; and WHEREAS, the Principal and 'Travelers Casualty and Surety Company of .America have agreed to execute and deliver the Payment Bond on the conditions herein stated. NOW, THEREFORE, the Payment Bond is hereby modified as follows: Paragraph 6 in the Payment Bond is deleted in its entirety and the following is substituted in its place: 6. When the Claimant has satisfied the conditions of Paragraph 4, and has submitted all supporting documentation and any proof of claim requested by the Surety, the :Surety shall, with reasonable promptness, notify the Claimant of the amounts that are undisputed and the basis for challenging any amounts that are disputed, including, but not limited to, the lack of substantiating documentation to support the claim as to entitlement or amount, and the Surety shall, with reasonable promptness, pay or make arrangements for payment of any undisputed amount; provided, however, that the failure of the Surety to timely discharge its obligations under this paragraph or to dispute or identify any specific defense to all or any part of a claim shall not be deemed to be an admission of liability by the Surety as to such claim or otherwise constitute a waiver of the Contractor's or Surety's defenses to, or right to dispute, such claim. Rather, the Claimant shall have the immediate right, without further notice, to bring suit against the Surety to enforce any remedy available to it under this Bond, Except as herein modified, the Payment Bond No. 105456093 shall be and remains in full force and erect. Signed, sealed and dated this day of 20 ®U.. -.. 7 (Sea]) J annette Porri. `, o v -in -Fact Travelers Casualty a0d W Rr Comoanv of America 1NARNING:7H15 PONWER OF A 1 1MITH0 UT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and 'Guaranty Insurance Underwriters, Inc.„ St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the 'Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman,. the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER. RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second. Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority, and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. 1, Kori M. Johanson, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian insurance Company, St.. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies„ which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this day of �'. , 20 U. Kori M. Joohaanss� Assistant Secretary G � ^ �°� � "Q � e6R *�ti,mmNS Jay �flsr� y,� � nwA �p ugey �kyt 6 P'� "iP �" 0 � "t+tOMG yf F� (Y y �9 l7 al th i cp RPAAATt: n a HARTFORD < ttAR'trCFIG r +". SEAL. Cot4d+. r r To verify the authenticity of this Power of Attorney, call 1 -800- 421 - 3980 or contact us at www.travelersbond.com, Please refer to the Attorney -In -Fact number, the above -named individuals and the details of the bond to which the power is attached. OF .wwwwwww�wnmimmrrmuewmnwu�umi wuwmwwpinwu WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE FLED BORDER Ad POWER OF ATTORNEY TRA ELERS Farmington Casualty Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and guaranty Company St, Paul Guardian Insurance Company Attorney -In Fact No, 214399 Certificate No. 00 KNOW ALL MEIN BY THESE PRESENTS:'That St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, "Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance. Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty .Insurance Underwriters, Inc., is a corporation duly organized Linder the laws of the State of Wisconsin (herein collectively called the "Companies "), and that the Companies do hereby mace, constitute: and appoint Jeannette Porrini, and Stacy Rivera of the City of arrttll�glea� __. State of 6ttrt l Fttt their true and lawful Attorneys) -in -Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances„ conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required, or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed, this day of .. February , 2406 Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company 28th St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company ,� 4MSUg4'""ek A yTY A�yO w++rr. Y �- �@ al °eeeona ( j f �a�`�,�Ao-oaarf��� n' �ni a HArtrKflf D, tt1RrF3P� o � lam' SEAL 3� G ate' rd dme v's 'A}7 • F �r� f Fa. • Ittt� State of Connecticut City of Hartford ss. By: Georg Th©rripson, enior ice Pr sidenL On this the 20Ch day of February 2446 before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St, Paul Guardian Insurance Company„ St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the ,purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. C,.1i@T In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 20th day of June, 2011. Au9LV� .+taric C. Tetreault, Notary Public 58440 -4 -09 Printed in U.S.A. TR N/ELERS CASUAL.rY AND SlJ.� C0MFPJ4YQF AMERICA HARTfiORD,CCNN'ECINCUT 5 la3 FINANCIAL, STATEMENT AS OF DECZ-NABER31,23n CAPITALS OCK S .SSE B'S I'S Cf 1 9 , 11 \ V E S ;e D CA SH Z 91,6--2,774 LINEARWED PKEM U. MS BONDS 1 -osSES N, ST,VENT �N`CVME DUE AND ACCRUE;D 81,425,44f, ! AD„ ST 1A =- la ExP aNI Is F: S 391,6.- PREMNU,M EALANGF5 163,66 - ,,DlV 001MMISSIONS S4,030,56e NE DFFERRE-() - 1 AX ASSE r 72,n5,733 TAXES, UCEKSES AND FEES 59,474,472 4,2.S0,0B0 01 ZXPENSw19 31,M,727 RENSUPIO,'-E R'--CEIVA'3LE NTEPCOMRANY 247,774;264 T!E,1 Ds HELD UNDER TRE;T l-,%M,7*5 (Ytl-Eq ASSETS 6,728,714 CURREKT FEDERALAND FORE10N INCOME TAXES 6, R-=64ITTANCLS NND I T EMIS NO T AUQCi-'J t f- W J RETAINED PY CO&LDMY FOR 0 4 RED FROACTIVE RENSURANCEMSE' RVE PGLICYFOLDER 01'JiDENDS 8,675.72" PROVISION FOR RFTNSU�kANC 7,954,503 CFDED REJNSURSkNCE E NUT PRU-MJWJS PAYABLE 7,612,; 1 12) PAYA LE 1 0 SLI AN D V-'p 111ATES 60,7V-,201 C� T-I 'E.D ACCRUi" 5 AND I ; iL$ 1.32°2 9F;1 7a AL LIIASIi; TES A-ZA- ALLL:l?— CAP: STOCK FAA! IN su RPLOS OTHERSURPLUS TOTAL SURPLUS ° POL ICYHOLDERS T 07, ASSETS TOTAL LIA51 LME S & Sl),L�PIA� S STATE Off '-CINKECT, ICLIT COLNTY OF < tkRTRCR" )35. MY Of HARTFORD M,ICV iAEL J. DX-IDY, BEING OU SINORK SAYS TfiX IS SECONT)'.FQE FRE$lDrNT, G'r TRAVELERS CASUALTYAND SURETY -GMPANY OF rIAERJCG ' TliF,l TO THE BF;S OFHIS KNOWLEDGE A1 lliE FOREGOIRG IS A TRUE ANO CORRE'CIT S OF THE Nr 001q['IT'CN OF .-q ND COMPANY AS OF THE fil t4 DAY OF DE-CS111MR, 2wi SECOND M- PRESR) "ST SAQRN 1 BEFORE ME TH NQTARYPU2I,Ir,- MY CONWJSSION th DAY OF -VRIL, 21010- SECTION�0O98B FUNDING AGENCY SPECIAL PROVISIONS FOR MONTANA PUBLIC FACILITY PROJECTS This section supplements the Montana Public Works Standard Specifications, Division O. The Standard General Conditions nfthe Construction Contract must be replaced with the Standard General Conditions ofthe Construction Contract Funding Agency Edition. This section includes supplemental general conditions that are required by Montana public facility funding programs or agencies listed in1.O1 below and are not included in the Montana Public Works Standard Specifications, Division D. ARTICLE 1. Special Provisions 1l1 Funding Aomookes This pro is being funded with funds from one ormore of the follow public fac funding programs or agencies: Renewable Resource Grant and Loan Program /RRGU Treasure State Endowment Program (TSBP) United States Department of Agriculture Rural Development (0SOAJRO) Community Development Block Grant Program (ODB8) Drinking Water or Water Pollution Control State Revolving Fund Loan Program (SRF) 1.01.1 Applicable Funding Agency Special Provisions ]n addition to Section 1.O2below the follow sections also apply emindicated: Section 1.03 (Additional USDA/RD Requirements) Section 1.04 (Additional CDBGRequirements) X_ — Section 1.05 (Additional SRFRequirements) X_ _Exhibit C (Federal Labor Standards Provisions) 1.02 Special Provisions for All Funding Agencies The following requirements pertain to all of the funding programs or agencies listed in 1.01 above. If project funding sources include any of the programs or agencies listed, the following general requirements must be met in addition to those required in the Montana Public Works Standard Specifications, Division O� 1.02.1 Reports, Information, and Access hoRecords The contractor, at such times and in such form as required by the owner (defined herein as the entity for which the project is being constructed) shall furnish reports pertaining to the work or services undertaken pursuant to this contract, the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered bv this contract. The owner and any federal, state Vr local governmental agency hav avalid interest |n this pro shall be permitted bvthe contractor to have full access hoand the right to examine pertinent documents of the contractor involving transactions related to this contract during the period of the project and for three (3) years from the date oƒfinal payment or until all findings have been resolved bJ the satisfaction ofthe funding agencies. 0088114 City of Bozeman Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 1�02,2 Contractor Eligibility and Certification Regarding Debarment The contractor certifies that the contractor's firm and the firm's principals are not debarred, suspended, mr otherwise ineligible boreceive any Montana public works contracts or subcontracts pursuant hu18-2-432 (2). MCA, For federally funded projects, theoontrautornerbfiemtbattheonntrentor'efirmendthe firm's principals are not debarred, suspended, voluntarily excluded, nrotherwise ineligible for participation in federally assisted contracts under Executive Order 1254B. "Debarment and Suspension" (24CFR24.5O5). 1.02.3 Contractor Registration and Worker's Compensation Requirements Title 39, Chapter 9, Parts 1 and 2MCA stipulate contractor registration requirements for the State of Montana. Pursuant to 39-9-201 MCA, each construction contractor must be registered with the Montana Department of Labor and Industry. In accordance with 39-8-102 MCA, "construction contractor" means o person, finn, or corporation that, in the pursuit of an independent business, offers to undertake, undertakes, nr submits a bid for construction. No bid shall be considered that does not carry the bidder's Montana Contractor's Registration Number on the bid form. Registration forms and additional information may be obtained by contacting the Montana Department of Labor and Industry, 1805 Prospect Ave., P.O. Box 8011. Helena, MT 586O4-8O11,orby calling 4DO-444-7734. The contractor must provide certification that workers' compensation insurance will be maintained as required by the Montana Workers' Compensation Act (39-71-101 1.02.4 Minimum Wage Requirements Unless superseded by federal law, 18-2-4B1 MCA and 18-2-4O2 MCA require that each employer pay, asa minimum, the rate of wages, including fringe benefits and zone pay applicable for the work being performed, as provided in the current Montana Prevailing Wage Requirements as determined by the Montana Department of Labor and Industry. The current wage determination must be included |n the contract documents |f the CCBG Program isfunding the project in whole orinpart, federal law requires that each employer pay, as a minimum, prevailing wages in accordance with the Federal Labor Standards Provisions ([}ovis-Beuun). HUD Form 4O10'Fedena|Labor Standards Provisions (Exhibit A) must be included in the contract documents for projects beingfundedinwhn|eorinpartbytheCOBG Program, |f Exhibit Cisindicated above, federal law requires that each employer pay, aeg minimum, prevading wages in accordance with the Federal Labor Standards Pnnvis|onm(Oevia-Baoo�n). Refer to Exhibit C. 1.02.5 Compliance With State and Federal Laws and Regulations 0088114 City of Bozeman Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects All applicable laws, ordinances, rules and regulations of authorities having jurisdiction over construction of the project shall apply to the contract throughout. The contractor must comply with all applicable state and federal occupational disease and health and safety laws and regulations, 1.02.6 Project Sign All projects will have a sign erected at a prominent location near the major portion of the work in plain view of the general public prior to submittal of the first pay estimate. The sign will generally conform to the following: "The CONTRACTOR, or such contractor as the ENGINEER may designate, when construction begins, shall erect a sign constructed of 4'X8'X exterior plywood (A-13) and shall be supported by and bolted to two (2) 4"X4" posts with the bottom of the sign at a point at least two (2) feet above the ground line. The project sign shall be maintained in a good condition until project completion. The sign will be edged, painted and lettered as shown on Exhibit B. The letters shall be approximately three (3) inches in height. The cost of the sign is incidental to the contract price. The sign shall remain the property of the owner. A statement indicating all agencies participating in the financing of the project shall be included on the sign. The sign shall be subject to agency approval prior to being erected. 1.02.7 Gross Receipts Withholding Requirements Pursuant to Section 15-50-206(2)(3), MCA, the owner is required to withhold one percent (1%) of all payments due the contractor and is required to transmit such moneys to the Montana Department of Revenue as part of the public contractor's license fee. In like fashion, the contractor is required to withhold one percent (1%) from payments to subcontractors. 1,02.8 Exceptions or Corrections to the Standard General Conditions of the Construction Contract Funding Agency Edition Replace Paragraph 18,08,A with the following: If this Contract exceeds $100,000, Contractor shall comply with all applicable standards, orders or requirements issued under Section 306 of the Clean Air Act (42 USC. 1857(h)); Section 508 of the Clean Water Act (33 USC 1368); Executive Order 11738; and Environmental Protection Agency Regulations (40 CFR Part 15). 1.03 Additional Special Provisions for USDA/RD 1.03.1 The following documents shall be attached to and made a condition of the contract documents for any project funded, in whole or in part, by Rural Development: If the bid amount exceeds $10,000, signed Compliance Statement (RD 400-6). Refer to specific equal opportunity requirements set forth in paragraph 18.10 of the General Conditions; 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-3 W the bid amount exceeds $25,000. signed Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transactions If the bid amount exceeds $100.UUU. signed RD Instruction 1Q40-O. Exhibit A- , Certification for Contracts, Grants, and Loans, Refer hu paragraph 10.11 of the General Conditions. 1.03.2 Free and Open Competition All procurement transactions wil|becomductedinomamnarthat provides maximum free and open competition. Examples of what are considered tube restrictive of competition |Dc|Uda but are not limited to: employment preferences to Montana Bidders or Montana Contractors and Montana residents. 1.033 Contractor's Roteinege No payments will be made that would deplete the retainage nor place in escrow any funds that are required for retainagecxinvest theretaimage for the benefit ofthe 1.04 Additional Special Provisions for CDBG 1.04.1 Equal Employment Opportunity Provisions 1.04.1/4 Equal Employment Opportunity Order 11248\. During the performance ofthis contract, the Contractor agrees as follows: The contractor will not discriminate against any employee or eppfimamt for employment because of mane, color, ne|igion, sex or national origin. The contractor will take affirmative action to ensure that applicants are emp|nyed, and that employees are treated during employment, without regard to their race, color, ns|igion, sex or national ohgim. Such action shall include, but not be limited to the following: employnlmnt, upgnad|mQ, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of oormpenaot|oo, and selection of tre|ning, including apprenticeship. The contractor mQnsee to post in conspicuous p|aoea, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. The contractor will, in all solicitations or advertisements for employees placed by or on behalf ofthe contractor, state that all qualified app|ioemba will receive consideration for employment without regard to nooe, oulur, religion, sex or national origin. iii. The contractor will send to each labor union or representative of workers with which it has o collective bargaining agreement or other contract nr understanding, a notice to be provided by the Department's contracting officer 0088114 City of Bozeman Treatment Plant Membrane Equipment Pro mm" Funding Agency Special Provisions for Montana Public Facility Projects mo908'4 advising the labor union or workers' representative of the contractor's nunnmitmem[n under Section 202 of Executive Order 11248 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment, iv. The contractor will comply with all of the provision of Executive Order 11248 of September 24. 1965, and of the ru|es, regulations and relevant orders of the Secretary of Labor. V. The contractor will furnish all information and reports required bv Executive Order 1124Oof September 24. 1865. and by the rules, [agu|ations, and orders of the Secretary of Lebor, or pursuant theneto, and will permit access to its books, records and accounts by the Department and the Secretary of Labor for purposes of investigation to ascertain compliance with such nu|es, regulations and orders, N. |n the event uf the contractors noncompliance with the non- discrimination clauses of this contract or with any of such ru|ea, reOo|abmna or orders, this contract may be cunoeied, terminated or suspended in whole or in part and the contractor may be declared |ne||g|b|a for further government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1865, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24. 1985. orbv rules, regulations, nr order of the Secretary uf Labor, nr es otherwise provided bylaw. vii The contractor will include the provisions of paragraphs 1 through 7 in every subcontract or purchase order unless exempted by nuiea, regulations or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 1124Wof September 24,19O5,aothat each provision will be binding upon each subcontractor orvendor. The contractor will bake such action with respect to any subcontract or purchase order os the Department may direct aaa means of enforcing such pmoVin|oma including sanctions for nomco0npDanoe. Pnovidod, hovvever, that in the event the contractor becomes involved in or is threatened with, litigation with a subcontractor or vendor as o result of such direction by the Oepmdmemt, the contractor may request the United States to enter into such litigation to protect the interest of the United States. 1.0413 Title V1| of the Civil Rights Act of 1964. Provides that no person shall, nn the grounds of race, color, o ati al be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance, 1.04.1.O Section 109 of the Housing and Community Development Act of 1874. "No person in the United States shall on the 0088114 City of Bozeman YrexmeoeumMumhrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects AmN0'J ground of race, color, national origin or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds available under this title. Any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 shall also apply to any such program or activity." 1.04.1.D Section 3 of the Housing and Community Development Act of 1968, The contractor will ensure that to the greatest extent feasible opportunities for training and employment arising in connection with this CDBG-assisted project will be extended to project area residents. Further, the contractor will, to the greatest extent feasible, utilize business concerns located in or substantially owned by residents of the project area, in the award of contracts and purchase of services and supplies, 1.04.1.E Minority Business Enterprise, Under the provisions of Executive Order 11246 contractors on federally-funded projects are required to take affirmative steps to assure that minority businesses are used when possible as sources of supplies, equipment, construction and services. Additionally, the contractor must document all affirmative steps taken to solicit minority businesses and forward this documentation along with the names of the minority subcontractors and suppliers to the owner upon request, 1.04.1F Nondiscrimination Provision in all Public Contracts Pursuant to Section 49-3-207, MCA, the Contractor certifies that all hiring will be on the basis of merit and qualifications and there will be no discrimination on the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental handicap, or national origin, 1.04.2 Uniform Federal Accessibility Standards (UFAS) All design specifications for the construction of any building shall provide access to the physically handicapped in accordance with the Uniform Federal Accessibility Standards and HUD regulations 24 CFR Part 8, "Nondiscrimination Based on Handicap in Federally Assisted Programs and Activities of HUD", 1.05 Additional Special Provisions for SRF 1.05.1 Equal Employment Opportunity and Affirmative Action Requirements on Federally Assisted Construction Contracts NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246) 1. The Offeror's or Bidder's attention is called to the "Equal Opportunity Clause" and the "Standard Federal Equal Employment Specifications" set forth herein. 0088114 City of Bozeman I-lyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-6 2 The goals and timetables for minority and female participation expressed in percentage terms for the Contractor's aggregate workforce in each trade onall construction work in the covered area, are asfollows: Goals for minority participation in each trade 3.3%� Goals for female participation in each trade f.]%� These goals are applicable to all the contractor's construction work (whether or not iL is Federal or Federally assisted) performed in the covered area. If the contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals eabyb|iahed for such geographical area where the work is actually performed, With regard to this second area, the contractor also is subject to the goals for both its federally involved and nonfedere/|yinvo|ved construction. The Contractor's compliance with the Executive Order and the regulations in 41 CFR Part 6U-4 shall be based qn its implementation of the Equal Opportunity clause, specific affirmative action obligations required bv the specifications set forth im41 CFR 60-4.3(a), and its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the contract, and in each trade, and the contractor shall make a good faith effort to employ minorities and women evenly om each of its projects. Thetrmmeferofmimority or female employees or trainees from contractor to contractor or from project to project for the sole purpose of meeting the contractor's goals shm||beo violation nf the contract, the Executive Order, and the regulations im41CFR Part 8O-4. Compliance with the goals will be measured against the total work hours performed, 3. The contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 1O working days of award ofany construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address and telephone number for the subcontractor; employer identification number of the subcontractor, estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the contract is tobe performed (see form on page 10). 4. As used in this Notice, and in the contract resulting from this solicitation, the "covered area" isthe This notice shall be included in, and shall beapart of, all solicitations for offers and bids om all federal and federally assisted construction contracts or subcontracts. EQUAL OPPORTUNITY CLAUSE The Equal Opportunity Clause published at41CFR Part 604,4(b) is required to be included in, and [s part of, all nonexempt federally assisted construction contracts and subcontracts. The Equal Opportunity Clause shall be considered tobe a part ofevery contract and subcontract required by the regulations in this part to include such a clause, whether or not itis physically incorporated in such contracts, In addition to the clause described above, all federal contracting officers, all applicants, and all non-construction contractors, as applicable, shall include the specifications set forth inthis section in all federal and federally assisted construction contracts in excess uf$1U.8OQto be performed in geographical areas designated by the Director pursuant to §60-4,6 of this part and in construction subcontracts in excess of $10,000 necessary |n whole orin part tothe performance of non-construction Federal contracts and subcontracts covered under the Executive Order. 00*811* City ofBozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00mno'7 STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246) 1.Am used |n these specifications: o. "Covered Area" means the geographical area described inthe solicitation from which this contract resulted; ` b. "Director" means [>iraohur. Office of Federal Contract Compliance Programs, United States Department of Labor, or any person to whom the Director delegates authority; u. "Employer identification numbe/' means the Federal Smoie| Security number used on the employer's quarterly Federal Tax Return, U.S. Treasury Department Form 941. d. ^'K8inorih/` includes: (i) Black (all persons having origins in any mfthe Black African naoim| groups not of Hispanic uhgin); (U) Hispanic (e|U persons of Mexican, Puerto R|oon, Cuban, Central or South American or other Spanish Culture or origin, regardless of nama)' (U|) Asian and Pacific Islander (yU persons having origins in any of the original peoples uf the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific ]a|anda); (iv) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification), 2. Whenever the contractor, or any subcontractor at any tier, subcontracts epor§on of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and hanna|e participation and which is set forth in the solicitations from which this contract resulted, 3. |fthe contractor is participating (pursuant to 41 CFR 80-4.5) in e Hometown Plan approved by the U.S. Department uf Labor im the covered area either indh/|dwe\|y or through am association, its affirmative action obligations oo all work imthe Plan area, (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must he able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan, Each contractor orsubcontractor participating in an approved Plan is individually required to comply with its obligations under the EE{} olauue, and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other contractors or subcontractors toward a goal in on approved Plan duoa not excuse any covered contractor's or subcontractor's failure to take good faith efforts to achieve the p|en Que|o and timetables. 4. The contractor shall implement the specific affirmative action, standards provided in ponoQnsphs (T)(a) through (p) of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the contractor should reasonably by able to achieve in each construction trade in which it has employees in the covered area. Covered Construction contractors performing construction vvodx in geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals 0088114 City of Bozeman Hyalite/SourdvughTreatment Plant Membrane Equipment Funding Agency Special Provisions for Montana Public Facility Projects 0090o-8 established for the geographical area where the work is being performed. Goals are published periodically in the federal register in notice form, and such notices may be obtained from any [Jffioa of Federal Contract Compliance Programs office or from Federal procurement contracting officers. The contractor is expected to make substantially uniform progress toward its goals in each craft during the period specified. 5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the contractor's obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto. 8. In order for the non-working training h0WnD of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must ba employed by the contractor during the training period, and the contractor must have made a commitment to employ the apprentices and trainees at the completion oftheir training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department cfLabor, 7. The contractor shall take specific affirmative actions bn ensure equal employment opportunity. The evaluation of the contractor's compliance with these specifications shall be based upon its effort toachieve maximum results from its actions. The contractor shall document these efforts fully, and shall implement affirmative action steps at least aa extensive an the following: a. Ensure and maintain o working environment free ofharassment, intinn|dation, and coercion at all sites, and in all facilities atwhich the contractor's employees are assigned to work. The contractor, where possible, will assign two or more women hm each construction project. The contractor shall specifically ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry out the contractor's obligation to maintain such avvorking emvimonnnent, with specific attention to minority orfemale individuals working at such sites or in such feciUt|aa. b. Establish and maintain a current list ofminority and hamo|e recruitment aournae provide written notification to minority and female recruitment sources and tu community organizations uvhentheoontractnroritsuniona have employment opportunities available, and maintain m record of the organizations' responses. o. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant and minority or female referral from e unium, a recruitment source or community organization and of what action was taken with respect to each such individual. |fsuch individual was sent to the union hiring hall for referral and was not referred back to the contractor by the union or, if referred, not employed by the contractor, this shall be documented in the file with the reason therefmr, along with whatever additional actions the contractor may have taken. d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor's efforts to meet its obligations. e. Develop on-the-job training opportunities and/or participate in training programs for the areas which expressly include minorities and women, 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects oovVO-o including upgrading programs and apprenticeship and trainee programs relevant to the contractor's employment needs, especially those programs funded or approved by the Department of Labor. The contractor shall provide notice of these programs to the sources compiled under ( above. f, Disseminate the contractor's EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreennent by publicizing it in the company newmpaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible 1n all employees at each location where construction work imperformed, g. Review, at least annually, the company's EE(} policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions including specific review of these items with on-site supervisory personnel such ms superintendents, general foremen, eto., prior to the initiation nf construction work et any job site, A written record shall be made and maintained identifying the time and place ofthese nneetingo, persons attending, subject matter discussed, and disposition of the subject matter, h. Disseminate the contractor's EE(} policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the contractor's EEO policy with other contractors and subcontractors with whom the contractor does oranticipates doing business. l. Direct its recruitment efforts, both oral and written, to minority, female and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the contractor's recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the contractor shall send written notification to organizations such oe the above, describing the openings, screening procedures, and tests tobe used |mthe selection process. j. Encourage present minority and female employees to recruit other minority persona and women and, vvhope neaaonab|e, provide after school, summer and vacation employment to minority and female youth both Vnthe site and in other areas of contractor's workforce. k. Validate all tests and other selection requirements where there is an obligation todoaV under 41CFR Part OO'3. |. Conduct, ot least annually, am inventory and evaluation st least ufall minority and female personnel for promotional opportunities and encourage these employees to seek ortm prepare for, through appropriate training, etn., such opportunities. m. Enmoma that seniority praoUceo, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EE(] policy and the contractor's obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes, 0088114 City of Bozeman exaldc/Sourdoaoh7remmoent Pi*nt Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects o09oo'lo u Document and maintain e record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation nf solicitations bz minority and female contractor associations and other business associations. p. Conduct a review, at least annually, of all supervisor's adherence bnand performance under the contractor's EEO policies and affirmative action 8 Contractors are encouraged bm participate in voluntary associations which assist [ fulfilling one or more of their affirmative action obligations (7)(a) through (p). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the contractor is a member and participant, may be asserted as fulfilling any one or more of its obligations under (7)(a) through (p) of these specifications provided that the contractor actively participates in the group, makes every effort to assure that the group has positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the contractor's minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the contractor. The obligation to comply, however, is the contractor's and failure of such a group to fulfill an obligation shall not be a defense for the contractor's noncompliance. 9. A single goal for minorities and a separate single goal for women have been established. The contractor, however, in required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently, the contractor may be in violation of the Executive Order if a particular group is employed inm substantially disparate manner (for example, even though the contractor has achieved its goals for women generally, the contractor may be in violation of the Executive order ifa specific minority group nf women isunder- utilized). 1O. The contractor shall not use the goals and timetables uf affirmative action standards to dlsnhno|nahe against any person because ofrace, color, na|igion, sex, or national origin, 11. The contractor shall not enter into any subcontract with any person or firm debarred from government contracts pursuant to Executive Order 11246. 12. The contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination and cancellation of existing muboumtoao[s as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regu|atimns, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246. as amended. 13. The contractor, in fulfilling its obligations under these specifico1iono, shall implement specific affirmative action steps, ot least ea extensive as those standards prescribed in paragraph (7)nfthese specifications, moaetoachieve nnaxirnunn results from its efforts to ensure equal employment v If the contractor fails tn comply vviththe requirements ofthe Executive (�rder,the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR 80'4.8. 0088114 City of Bozeman Treatment Plant Membrane Equipmen Procuremen Funding Agency Special Provisions for Montana Public Facility Projects 00900- 11 14. The contractor shall designate a responsible official to monitor aNemployment related activity to ensure that the company EEO policy ia being carried out, to submit reports relating 0o the provisions hereof aa may be required bythe government and to keep records. Records shall et least include for each employee the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in ebatus, hours worked per week in the indicated 1nada, rote of pay. and locations at which the work was performed, Records shall be maintained |naneasily understandable and retrievable form; however, hm the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records. 15. Nothing herein aoa limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program) 00881m City of Bozeman Ryal*e/Sourdoughzreatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects LO C LL 10 (14 >, Lr) 0 (U L , 0 CO �D - Ok�r 0 dwo E 28 0 a) co > o > co 0 ( OE - 1 a- a o es L E -2 .E-.c ="A. LU a E E 0 CD on E 0 0 M E m U) _0 (D .2 cD M E ci A 0 :3 ti 0-6 E 2 < c: 0 U) E F- Z UJ 0 u m 0 U) U. E 0 z z 0 ❑ 0 0 U) LL CL E 0 Z E E co = Z w f2 0 c 0 CL 06 U) o es L E -2 .E-.c ="A. LU a E E 0 CD on 1.05.2 Guidance for Utilization of Small, Minority and Women Business Enterprises (DBE) Requirements of 40 CFR 35.3145(d) 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. REQUIREMENTS 1. The recipient and prime contractor will exercise good faith efforts to attract and utilize small, minority, and women's business (DBEs) enterprises primarily through outreach, recruitment, and race/gender neutral activities. At a minimum, the recipient and project bidders will follow the six affirmative steps below: a. Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities including placing DBEs on solicitation lists and soliciting them whenever they are potential sources; b. Make information on forthcoming opportunities available to DBEs and arrange time frames and establish delivery schedules, when the requirements of the work permit, which will encourage participation by DBEs; c, Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs; including dividing total requirements, when economically feasible, into small tasks or quantities to permit maximum participation by DBEs; d. Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually; e. Using the services of the Small Business Administration and the Office of Minority Business Enterprise of the U.S. Department of Commerce, as appropriate; and f. Require a. through e, to be taken if subcontracts are awarded. B. FAIR SHARE OBJECTIVE 1, The fair share objective for this project is 2 %MBE's and 3 % WBE's. C. DEFINITIONS 1. Minority Business Enterprise (MBE) is a business concern which is: a. Certified as socially and economically disadvantaged by the Small Business Administration; (1) Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities. (2) Economically disadvantaged individuals are those socially disadvantaged individuals whose ability to compete in the free enterprise system is impaired due to diminished capital and credit opportunities, as compared to others in the same business area who are not socially disadvantaged. In determining the degree of diminished credit and capital opportunities, the Small Business 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-14 Administration shall consider, but not be limited to, the assets and net worth of such socially disadvantaged individuals. Individuals who certify that they are members of named groups (Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Amehoana). are tobe considered socially and economically disadvantaged. Economically and socially disadvantaged individuals are deemed ho include women, or b Certified as a minority business enterprise by a State or Federal agency; cAm independent business concern which ised least 51 percent owned and controlled bv minority group rmember(s). (1)A minority group member ison individual who is a citizen of the United States and one of the following: (a) from Puerto Rico, Mexico, Cuba, South or Central America) (c) Native American (American Indian, Eskimo, Aleut, native Hawaiian); or kj> Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, the U.S. Trust Territories of the Pacific, Northern Marianas, Laos, Cambodia, Taiwan or the Indian subcnnUnand. (2)|n order b/ satisfy the third criteria of the MBE definition, the minority ownership's interest must bereal, substantial and continuing. Such interest io characterized by: /a0 Risk of loss/share of profit commensurate with the proportional ownership; and 8d Receipt of the customary incidents ofownership, such as compensation (ie. salary and other personnel oompemna§un). CB /\ minority owner must have and exercise control cfthe business decisions. Characteristics mf control include, but are not limited to: (a) Authority tn sign bidaamdcuntmact ' (L) Decisions im price negotiations; (c)Incurring liabilities for the firm; (d) Final staffing decisions; (e) Policy-making; and (f) General company management decisions, (4) Only those firma performing a uoefubueinessfunction according to custom and practice in the industry are qualified as MBEs. Acting merely osa passive conduit of funds to some other firm where such activity is unnecessary 10 accomplish the project does not constitute o "useful business function according bocustom and practice im the ind ,"Thepurpnseof[hisoppnoanh|sto discourage the use of MBE "frunts' and limit the creation ofon artificial supplier and broker marketplace. 0088114 City of Boomuu uva`te/S,vrdowax Treatment Plant Membrane Equipment Procurement Funding Agency SpeoialYrovisionr, for Montana Public Facility Projects u0900-/5 2. a business which is certified au such bv a State or Federal agency, or which meets the following definition: "A women's business enterprise is an independent business concern which iszt least 51 percent owned bya woman or women, who also control and operate it. Determination of whether a business iaat least 51 percent owned bye woman or otherwise qualified VVBE which |s51 percent owned byo married woman ina community property State will not bedisqualified because her husband has a5Q percent interest im her share. Similarly, a business which is51 percent owned bya married man and 40percent owned bvan unmarried woman will not become o qualified VVBEbyvirtue of his wife's 50 percent interest in his share ofthe business." As in the case of a MBE, only United States citizens will be deemed to be WBES, Similar to the MBE criteria, WBE should meet the criteria cited in subparagraphs 3. Fair Share or Fair Share Objective /\ fair share nra fair share objective is an amount oJ funds reasonably commensurate with the total project funding and the availability of qualified MBEs and VVBEo. taking into account experience on EPA- funded prjecteandntharoompermb|ep jectnintheamaa.Afaireharoobieotive does not constitute an absolute requirement, buta commitment on the part of the bidder tm exercise good faith effo°tsaa defined in this section hmuse MBEs and VVBEe to achieve the fair share objective, 4. .Amy business entity, including its affiliates, that is independently owned and operated, and not dominant in its field of operations in which itia bidding nn Government contracts, and qualified ana small business under the criteria and size standards set forth |m13CFR Part 131, 6 A small business ine rural area (GBRA)ima business entity meeting the definition ufa small business, and in located and conducts its principal operations in a geographical area (county) listed in the Small Business Administration's Listing VfNon1Wetmzpn|ikan Counties by State. 6. Eg�q!I�4 party receiving SFlF financial assistance. 7. he*mrkfinanned through anSRFloan. 8. Bidder. A party seeking to obtain u contract with o recipient through a competitive, advertised, sealed bid process. 9. Offeror. A party seeking to obtain a contract with o recipient through enaQoUative procurement process. 10. Prime Contractor. A party that has obtained e contract with a recipient through a competitive, advertised, sealed bid process. 11. Good Faith Efforts. Good faith efforts bva recipient, prime contractor, and/or b|dder/offerormneans efforts toattract and utilize SBEs, MBEs, and VVBEo(DBEa) primarily through outreach, recruitment, and race/gender neutral activities. The following are examples ofactivities to assist recipients, prime contractors and/or bidders/offerors to comply with good faith efforts, A. Include qualified GBEs, MBEs, andVVBEs on solicitation lists. 1. Maintain and update a listing of qualified 8BEs, MBEs, and VVBEa and SBRAsthat can be so for supplies, construction and/or services. 2. Provide listings to all interested parties who requested copies of the bidding or proposing documents. 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 3. Contact appropriate sources within your geographic area and State to identify qualified MBEs and WBEs for placement on your minority and women's business listings. 4. Utilize other MBENVBE listings such as those of the State's Minority Business Office, the Small Business Administration, Minority Business Development Agency, US EPA- Office of Small and Disadvantaged Business Utilization (OSDBU) and the Department of Transportation. 5. Have the State environmental agency personnel review this solicitation list. B. Ensure that SBEs, MBEs, and WBEs are solicited, 1. Conduct meetings, conferences, and follow-ups with SBEs, MBEs, WBEs, and SBRAs, small, minority and/or women's business associations, minority media, etc,, to inform these groups of opportunities to provide supplies, services, and construction, 2. MBE utilization is facilitated if the recipient or prime contractor advertises through the minority media. Such advertisements may include, but are not limited to, contracting and subcontracting opportunities, hiring and employment, or any other matter related to the project. 3. Conduct pre bid, pre - solicitation, and post-award conferences to ensure that consultants, suppliers, and builders solicit SBEs, MBEs, WBEs, and SBRAs. 4. Provide bidders and offerors with listings of qualified SBEs, MBEs, WBEs, and SBRAs and establish that a fair share of contracts/procurements should be awarded to these groups. 5. Advertise in general circulation, trade publications, State agency publications of identified source, minority or women's business focused media, etc., concerning contracting opportunities on your projects. Maintain a list of minority or women's business-focused publications that may be utilized to solicit MBEs or WBEs. 6. Provide interested SBEs, MBEs, WBEs, or SBRAs with adequate information about plans, specifications, timing and other requirements of the proposed projects. 7. Provide SBE, SBRA, MBE or WBE trade organizations with succinct summaries of solicitations. 8. Notify SBEs, MBEs, WBEs, or SBRAs of future procurement opportunities so that they may establish bidding solicitations and procurement plans. C. Make information on forthcoming opportunities available to DBEs and arrange time frames and establish delivery schedules, where requirements of the work permit, which will encourage participation by SBEs, MBEs, WBEs and SBRAs. 1. Consider lead times and scheduling requirements often needed by SBE, MBE, WBE or SBRA participation. 2. Develop realistic delivery schedules which may provide for greater SBE, MBE, WBE or SBRA participation. 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-17 3. Whenever possible, post solicitations for bids or proposals for a minimum ofDO calendar days before the bid or proposal closing date B. Consider |n the contracting process whether firms competing for large contracts could subcontract with DBEs; including dividing total requirements when economically feasible, into small tasks or quantities to permit maximum participation ofSBEe. MBEs, VVBEa and SBRAa, 1. Perform onanalysis to identify portions of work that can bu divided and performed bv qualified SBEa. MBEs, VVBBsand SBRAe. 2. Scrutinize the elements of the total project to develop economically feasible units of work that are within the bonding range of SBEs MBEs, VVBEo and G8RAs. 3. Analyze bid packages for compliance with the good faith efforts to afford SBEs, MBEs, WBEs and SBRAs maximum participation. 4. Encourage contracting with o consortium ofSBEo.MBEs, VVB2e and SBRAe when e contract im too large for one ofthese firms to handle individually E. Use the services and assistance cf the Small Business Administration and the Minority Business Development Agency of the US Department of Commerce, aoappropriate. 1. Use the services of outreach programs sponsored bvthe Minority Business Development Agency and/or the Small Business Administration tn recruit bona fide firms for placement onSBEs', K8BEn'.VVBEo.orSBRAn' bidders lists to assist these firms inthe development of bid packaging. 2. Seek out Minority Business Development Centers0&BDCm to assist recipients and prime contractors in identifying MBEs for potential work opportunities om this project. F. If the prime contractor awards subcontracts, require the prime contractor to take the steps in paragraphs (A) through (E) of this section. Q. ADDITIONAL CONTRACT PROVISIONS (New Requirements) 1� The prime contractor must pay its subcontractors for satisfactory performance no more than 3O days from the prime contractor's receipt uf payment from the owner, 2. The prime contractor must notify the owner im writing prior buany termination ofo DBE subcontractor for convenience. 3. |fe DBE subcontractor fails to complete work under the subcontract for any reason, the prime contractor must employ the six good faith efforts if soliciting o replacement subcontractor, even if the fair share objectives have already been achieved. 4. The —DBE Program Subcontractor Participation Form (copy attached) tn all of its DBE subcontractors. The subcontractors can submit completed forms tnthe EPA DBE Coordinator (address included om the 0ornl). 5. The prime contractor must have its DBE subcontractors complete EPA Form OBE Program Subcontractor Performance Form (copy attached) and include completed forms in its bid / proposal package Vr submit the form within seven (7) calendar days of the bid opening, 6. The BEPmognam Subcontractor Utilization Form (copy attached) and submit aa part ofits 0088114 City of Bozeman liyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900- 18 bid or proposal package or submit the form within seven (7) calendar days of the bid opening. 7. Failure to submit the requested information (Form 6100-3 and Form 6100-4) within seven 7) calendar days of the bid opening may be viewed as non-responsive. Additional DBE forms can be downloaded at http://www.epa.-gov/osdbu/qrant.htm E. REPORTING 1, Bidders/offerors shall demonstrate compliance with good faith efforts in order to be deemed responsible. At a minimum this will include completing EPA forms 6100-3 and 6100-4 as discussed above. Additional efforts could include maintaing phonelmail logs (see attached MBE/WBE Subcontractor Solicitation Sheet), submitting proof of DBE solicitation advertisements, etc.. The owner may specify other methods of demonstrating compliance, 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900- 19 ca E 0 a) 0 0 co to LD (D a) D D m En ar o O I w 'a)* E .2 .=.m cr a. cs E CD C O CD to 'r cc cc) 0 co 0 CO (D 0 U) < SL 0 C 0 tt= z 0 0 Z 0 C) P 0 o (n 0 ON a) .F-- 0 0 U- E z < o z 0 cd 0- CL 0 :3 0 0 0 Vi 0 (n 0 M 0 4) o u- a. z 0 0 M cf) w a) 0 w m (3) Cr (D 0 to ::3 06 0 U) 0 U 4- 0 '0 6 < z C: N (D 0 E C: o 10 -r- :3 z CL U) ca E 0 a) 0 0 co to LD (D a) D D m En ar o O I w 'a)* E .2 .=.m cr a. cs E CD C O CD to 'r cc Environmental Protection Agency DBE Coordinator 1595 Wynkoop Street (8P-W-TF) Denver, CO 80202 OMB Control No: 2090-0030 Approved: 05/01/2008 .Approval Expires: 01/31/2011 vantaged Business Enterprise Program DBE Subcontract Participation Form KOW09 EMAIL Please use the space below to report any concerns regarding the above EPA-funded project Ce.j., reason for termination by prime contractor, late payment, etc.). I ' AMOUNr 111AI OF WORK OR DESMMON OF SERVICES RECEIVED FROM SUBCONTRACTOR THE PRINM CONTRACTOR Subcontractor Signature: Title/Date subcontractor is defined as a company, firm, joint venture or individual who enters into an agreement with a contractor to provide services pursuant to an EPA award of financial assistance EPA FORM 6100-2 BE SubcotilractorParticipation Form) 0088 t 14 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-21 "Lviror f r Protection Agency OMB Control No: 2090-0030 Approved- 05/01/2008 Approval Expires: 01/31/2011 Disadvantaged Business Enterprise Program DBE Subcontractor Participation Form The public reporting and recordkeeping burden for this collection of information is estimated to average fifteen (15) minutes. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid ONM control number. Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460. Include the ONO control number in any correspondence. Do not send the completed EPA DBE Subcontractor Participation Form to this address. EPA FORM 6100-2 (DBE Subcontractor Participation Form) 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-22 A% Nww. Environmental Protection Agency OMB Control No: Approved. Approval Expires-. Disadvantaged Business Enterprise Program DBE Subcontractor Performance Form ADDRESS 0 tT*l I E-MAIL ADDRESS a WO I7 UKKO)ON IV 1 14vifflM • taLNG I I rIEM OF WORK OR DFSCRIYnON OF SERVICES 19M TO PRINM Currently certified as art NS H or W13E under EPA's DBE Program? Signature of Prime Contractor Print Name Signature of Subcontractor LEM= Yes No 'Subcontractor is defined as a company, firm, joint venture, or individual who enters into an agreement with a contractor to provide services pursuant to an EPA award of financial assistance. EPA FORM 6100-3 (E)BE Subcontractor Performance Form) 0088114 City of Bozeman Hyalite /Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-23 A% AM Environmental Protection Agency ONM Control No: Approved.- Approval Expires: Disadvantaged Business Enterprise Program DBE Subcontractor Performance Form The public reporting and recordkeeping burden for this collection of Information is estimated to average fifteen (15) minutes. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjustthe existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources, complete and review the collection of Information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Send comments on theAgmey's need for thisinformation, the accuracy of theprovided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques to the Director, Collection StrategiesDivisionUS. EnvironmentalProtection Agency (28 NW, Washington, D.C. 20460. Include the ONM control number in any correspondence. Do not send the completed EPA DBE Subcontractor Performance Form to this address. EPA FORM 6100-3 (DBE Subcontractor Performance Form) 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding A,-ene Special Provisions for Montana Public Facility Projects 00900-24 OMB Control No; 20904)030 Approved: 05/01/2008 Aft Envirorunental Approval Expires: 01/31/2011 1 40WAr , Protection Agency - Imamonow Disadvantaged Business Enterprise Program DBE Subcontractor Utilization Form The following subcontractors will be used on this 12pject: COMPANY NAME, ADDRESS, PHONE TYPE OF WORK TO BE ESTIMATED CURRENTLY NUMBER, AND E-MAIL ADDRESS PERFORMED DOLLAR CERTIFIED AMOUNT AS AN MBE OR WBE? I certify under penalty of pedury that the forgoing statements are true and comlet. In the event of a replacement of a subcontractor, I will adhere to the replacement requirements Set forth in 40 CFR Part 33 Section 33.302(c) Signature of Prime Contractor Date Print Name Title 'Subcontractor is defined as a company, fimi, joint venture„ or individual who enters into an agreement with a contractor to provide services pursuant to an EPA award of financial assistance. EPA FORM 6100-4 (I)BE Subcontractor Utilization Form) 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-25 MM Coxxtrol No: 2090-0030 Approved 05/01/2006 Aft Environmental Approval Expires! 01/31/2011 AM Protection Agency Disadvantaged Business Enterprise Program DBE Subcontractor Utilization Form The public reporting and recordkeeping burden for this collection of information is estimated to average fifteen (15) minutes. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid COMB control number, Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822), 1200 Pennsylvania Ave., NW, Washington, D.0 20460. Include the OMB control number in any correspondence. Do not send the completed EPA DBE Subcontractor Utilization Poem to this address. EPA FORM 610" (DBE Subcontractor Utilization Farm) 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 00900-26 1.053 Certification Regarding Debarment, Suspension and Other Responsibility yNatteny A+ INSTRUCTIONS Under Executive Order 12549, an individual or organization debarred or excluded from participation in Federal assistance or benefit programs may not receive any assistance award under a Federal program, or a subagreement thereunder for $25,000 or more, The status of prospective individuals or organizations can be checked at: A prospective prime contractor must submit a completed certification (see form on the following page) or explanation to the project owner for the project, Each prospective subcontractor must submit a completed certification or explanation to the prime contractor for the project. B. HOW T(}OBTAIN FORMS Additional forms may be obtained from the State or may be reproduced 008 8114 City vfBozeman nyalxe/Sourdoughtreatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects o89o0-27 8RF Project Number United States Environmental Protection Agency Washington, DC2O460 Certification Regarding Debarment, Suspension, and Other Responsibility Matters The prospective participant certifies to the best of its knowledge and belief that it and its principals! (e) Are not presently debarred, suspended, proposed for debarment, declared ineligible, orvoluntarily excluded from covered transactions by any Federal department oragency; (b) Have not within a three year period preceding this proposal been convicted ofor had acivil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under public transaction; violation of Federal or State antitrust statutes orcommission of embezz[ement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for orotherwise criminally or civilly charged bya government entity (Federal, State, nr local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default. | understand that afalse statement nnthis certification may be grounds for rejection of this proposal or termination nf the award. |m addition, under 18USCSec. 1001 false statement may result |nefine of up to $10,000 or imprisonment for up to 5 years, or both. Typed Name & Title of Authorized Representative Signature of Authorized Representative Date |am unable to certify to the above statements. Ny explanation is attached. 0088114 City ofBozeman Hyaliu/SoumoughTreatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects 0u90V'z* 1.05i4 Prohibition Against Listed Violated Facilities A. REQUIREMENTS (1)Tn comply with all the requirements of section 114of the Clean Air Act, asamended (42 U.S.C. 1857, etaeq.. as amended by Pub, L and section 308 nf the Clean Water Act /33 U.&C� 1251, as arnended), respectively, which relate to inepaotiun, monitoring, entry, reports, and information, as well as other requirements specified in section Y14 and section 3O8of the Air Act and the VVeterAnt. respectively, and all regulations and guidelines issued thereunder before the award of this contract. (2) That no porfion of the work required by this prima contract will be performed in a facility listed on the Environmental Protection Agency list of violating tso|||Ugu on the date when this contract was awarded unless and until the EPA eliminates the name of such facility urfacilities from the listing. (3) To use his best efforts ho comply with clean air and clean water standards atthe facilities in which the contract ia being performed. (4) To insert the substance of the provisions of this clause, including this paragraph (4\, in any nonexemnptsubcontract. ' B. DEFINITIONS (l) Air Act means the Clean Air Act, oaamended (42U�G.C� 1857 et seq.). (2) Water Act means the Clean Water Act, as amended (33 U.S.C. 1251 et seq.). C8 Clean Air Standards means any enforceable rules, regulations, guidelines, standards, limitations, orders, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted under the Air Act or Executive Order 11738, an applicable implementation plan as described in section 110 (d) of the Air Act (42 U.S.C. 1857c-5(d)), an approved implementation procedure or plan under section 111 (c) or section 111 (d), or an approved implementation procedure under section ) Clean Water Standards means any enforceable limitation, control, condition, prohibition, standard, or other requirement which is promulgated under the Water Act or contained in a permit issued to a discharger by the Environmental Protection Agency or by a State under an approved program, as authorized by section 402 of the Water Act (33 U&C, 1342), or by a local government to ensure compliance with pretreatment regulations as required by section 307 of Water Act (33 U.S.C. 1317). (B ^ ' Compliance means compliance with clean air or water standards, Compliance shall also mean compliance with a schedule or plan ordered orapproved ' �acoudof competent jurisdiction, the Environmental Protection Agency ln accordance with the requirements of the Air Act nr Water Act and regulations. O) Facilit means any bmi[ding, p|ant, instsNsdinn, utruotuna, mine, vessel, or other floating craft, location, or site of operations, owned, leased, or supervised by a contractor or subcontractor, to be used in the performance of a contract or subcontract. Where a location or site nf operations contains or includes more than one building, plant, installation, or structure, the entire location ur site shall be deemed bobeeteoi|itvexcept where the Director, Office of Federal Activities, Environmental Protection Agenc deb»rm|neethetindependentfaci||t|eaare|ooated1nooegeogreph[no|un:/~ '' 1.05.5 Discovery of Archaeological and other Historical Items 008 8114 City ofBozeman Treatment Plant Membrane Equ ipment Funding Agency Special Provisions for Montana Pub Facility Project 00900 29 |n the event ofan archaeological find during any phase of construction, the following procedure will be followed: (1) Construction shall be halted, with es little disruption tothe archaeological site as possible. (2) The Contractor shall notify the Owner who shall contact the State Historical Preservation Officer. (3) The State Historical Preservation Officer may decide to have an archaeologist inspect the site and make recommendations about the steps needed to protect the site, before construction iaresumed. (4) The entire event should be handled as expediently as possible in order to hold the yoma in construction time to a minimum while still protecting archaeological finds. A similar procedure should be followed with regard to more recent historical resources. Should any artifacts, housing aitea, etc, be unonvered, the same procedure should be followed oa for am archaeological find. In the event archaeological/historical data are evaluated to meet National Register criteria, the Advisory Council nn Historic Preservation may be notified and asked to comment. 1.05,D Williams-Steiger Occupational Safety and Health Act of1970 (1) The contractor is subject to the provisions Pfthe Williams-Steiger Oooupationa Safety and Health Act of 1970. (2) These construction documents and the joint and several phases of construction hereby contemplated are to be governed, at all times, by applicable provisions of the Federal law(s) , including but not limited to the latest amendment of the following: e. Williams-Steiger Occupational Safety and Health Act of187O, Public Law 94-596; b Part 181O- Occupational Safety and Health Standards, Chapter XV|| of Title 29, Code of Federal Regulations; c. Part 1S2O-Safety and Health Regulations for Construction, Chapter XVI|oƒ Title 29, Code of Federal Regulations, B. SAFETY AND HEALTH PROGRAM REQUIREMENTS (1) This project, its prime contractor and its subcontractors, shall at all times be governed bv Chapter XV|| of Title 2S. Code of Federal Regulations, Part 1928 -8afeb/ and Health Regulations for Construction (29 CFR228O1), as amended to date. (2) To implement the program and to provide safe and healthful working conditions for all persons, general project safety meetings will be conducted at the site at least once each month during the course of construction, by the construction superintendent or his/her designated safety officer. Notice of such meeting shall be issued not Ueem than three (3) days prior, stating the exact time, location, and agenda tobeincluded. 0098114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects Attendance bv the owner, architect, general foreman, shop eteVvand(e), and trades, or their designated representatives, witnessed |n writing as such, shall be mandatory. (3) Tn further implement the program, each trade shall conduct a short gang meeting, not less than once a week, hm review project safotyneqoinemenbamandahoryfnrgQ persons during the coming week. The gang foreman shall report the agenda and specific items covered tu the project auperintendant.vvhuahaUinomrporatetheae|tams in his/her daily log or report. ( The prime contractor and all subcontractors gho|| immediately report all accidents, injuries, or health hazards to the owner and architect, or their designated representatives, in wr|Ung. This shall not obviate any mandatory reporting under the provisions oy the Occupational Safety and Health Act of1S7D. ( This program shall become apert of the contract documents and the contract between the owner and prime contractor, prime contractor and all subcontractors, am though fully written therein 1.05.7 Wage Determination The Contractor must post the wage scales and pay, asa minimum, prevailing wage accordance with the Federal Labor Standards Provisions (Oavis+Baoon). Refer to Exhibit 1.058 Access 1. The recipient must insure that representatives of the Environmental Protection Agency and the State will have access to project records and the project work whenever it is in preparation or progress and must provide proper facilities for such access and inspection. The recipient must allow the Regional Administrator, the Comptroller General mfthe United States, the State agency, or any authorized representative, to have access to any books, documents, plans, reports, papers, including records of contractors which are pertinent tn the project forthepurpnseofmakimg audit, examination, excerpts, copies, and transcriptions thereof, The recipient must insure that a party tnaoubagreenmentwill afford access tn such project vvork.s(hao.docunnente.aodmauouds. 1.06.8 Construction Site Erosion and Sediment Control Measures Every effort shall be made by the contractors and subcontractors to prevent and correct problems associated with erosion and runoff processes which could occur during and after project oom*truotion. The efforts should be consistent with applicable local ordinances, the EPA Nonpoint Source Pollution Control Guidance and Department of Environmental Quality Stormvnater Management Plan. Wherever appropriate, the contractor's efforts shall reflect the following engineering 1. When appropriate, land grading and excavating should be kept et anoiniruum to reduce the possibility of creating runoff and erosion problems which require extensive control measures. 2. Whenever possible, topsoil should he removed and stockpiled before grading 3. Land exposure should be minimized in terms of area and time. 008 8114 City vfBozeman zremmemehmtwom»omvEquipment*mooremen, Funding Agency Special Provisions for Montana Public Facility Projects n0oo0'sl 4. Exposed areas subject to erosion should be covered ae quickly as possible by means of mulching orvegetation. 5. Natural vegetation should be retained whenever feasible, 8. Appropriate structural ur agronomic practices bo control runoff and sedimentation should be provided during and after construction. 7. Early completion of stabilized drainage systems (temporary and permanent systems) will substantially reduce erosion potential. 8. Roadways and parking lots should be paved nr otherwise stabilized as soon as feasible. 9. Clearing and grading should not bestarted until ofimn construction schedule is known and can be effectively coordinated with the grading and clearing activity. 1.06 Exhibits 008 8114 City u[Bozeman Hyalite/Soutdough Treatment Plant Membrane Equipment rmooremuu Funding Agency Special Provisions for Montana Public Facility Projects V090V'J2 EXHIBIT C Federal Labor Standards Provis|Vne For Federally Assisted Construction Contracts United States Department of Labor CFR Code of Federal Regulations Pertaining toESA (Federal Davis-Bacon Wages) Title 29, Chapter 1, Part 5, Subpart A (29 CFR 5,5 ) Section Name: Contract provisions and related matters. (a) The Agency head shall cause or require the contracting officer to insert in full in any contract in excess of $2,000 which is entered into for the actual construction, alteration and/or repair, including painting and decorating, of a public building or public work, or building or work financed in whole or in part from Federal funds or in accordance with guarantees of a Federal agency or financed from funds obtained by pledge of any contract of a Federal agency to make a loan, grant or annual contribution (except where a different meaning is expressly indicated), and which is subject to the labor standards provisions of any of the acts listed in Sec. 5. 1, the following clauses (or any modifications thereof to meet the particular needs of the agency, provided, that such modifications are first approved by the Department of Labor): (1) Minimum 0 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 I (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 Sec. 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. (ii)(A) The contracting officer 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 contracting officer shall 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 C8 The classification |s utilized in the area by the construction industry; and C8 The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship 10 the wage rates contained in the wage determination. 0088114 City of Bozeman Hyal ite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects (B)If the contractor and the laborers and mechanics hobe employed h7the classification (if known).or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated fbrfhngebenefitavvheraappmopdute\,anapudofthe action taken shall be sent bythe contracting officer 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 3O days of receipt and eo advise the contracting officer or will notify the contracting officer within the 3D-dayperiod that additional time |onecessary, (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including theanmount designated for fringe benefits, where appnoprimhe), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, bo the Administrator for determination, The Administrator, or an authorized representative, will issue @ determination within 8Odays of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (0) 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 expmessed 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 ofob[igotions under the plan orprogram. (2) Withholding. The loan or grant neci shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause tobe 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. |nthe event of failure to pay any laborer or mechanic, including any apprentice, tnsimee.orheipar,ernp)uyedorvvorhin0on1he site nf 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 or SRF program) 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 b* 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 of1949,in the construction or development of the project). Such records shall contain the name, address, and social security number nf each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fhngebenefitauruasheqoiva|enbotherecfofthatypeadescribedimaeotionƒ(b)(2)(B)oftheDavis-Bauon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary uf Labor has found under 2SCFR 5,5(a)(1)(iv)that the wages of any laborer ormechanic include the amount of any costs reasonably anticipated in providing benefits under a plan orprogram described in section I (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 0088114 City of Bozeman 1.1yalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects affected, and records which show the costs anticipated urthe actual cost incurred hn providing such benefits. Contractors employing apprentices ur trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration pfthe apprentices and trainees, and the ratios and wage rates prescribed inthe applicable programs. (ii)(A) The contractor shall submit weekly for each week in whichany contract work is performed a copy of all payrolls tmthe SRF program if the agency is a party tuthe contract, but |fthe agency in not such e party, the contractor will submit the payrolls to the applicant, sponsor, or owner, aa the case may be, for transmission to the SRFpnngram. The payrolls submitted shall set out accurately and completely all ofthe information required tobe maintained under 2SCFR 5 . 5 (g)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals, 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 VVH-347is available for this purpose from the Wage and Hour Division Web site @t http://www.dol.gov/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 mhe|| maintain the full social security number and current address of each covered worker, and shall provide them upon request to the SRF program if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit them to the applicant, sponsor, or owner, as the case may be. for transmission to the SRF program, the contractor, or the Wage and Hour Division of the Department of Labor for purposes ofan investigation ur audit uf compliance vvithprevai|ingwagerequirenmenta.l!|amotavio|atinn 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 sponsoring government agency (or the applicant, sponsor, orovvner). (B) Each payroll submitted shall be accompanied bve "Statement ofCornp|iance." signed bvthe contractor nr subcontractor nr 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 Sec. 5.5 (e)(3)(U) of Regulations, 29 CFR part 5, the appropriate information is being maintained under Sec. 5.5(m)(3)(i)of Regulations, 29CFR 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 |m the applicable wage determination incorporated into the oomtmmoL (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 (e)(3)Ui)(B)uf this section. (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 loan o/ grant recipient or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. |fthe contractor or subcontractor fails to submit the required records or to make them available, the Federal 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, Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to29CFR5.12. uU Apprentices and trainees U\ Apprentices. Apprentices will bmpermitted 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 mfLabor, Employment and Training 0088114 city of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects O0onO'35 Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, if a person is employed | his or her first BO 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 uf Labor, Employment and Training Administration, The ratio oƒ trainees to journeymen on the job site shall not be greater than permitted under the plan approved b the Employment and Training Administration, Every trainee must be paid at not less than the reba specified in the approved program for the trainee's level of progress, expressed aaa percentage ofthe journeyman hourly rate specified |mthe 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 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 aioainimg plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rateon 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. Kn the event the Employment and Training Administration withdraws approval ofa training program, the contractor will no longer bepermitted to utilize trainees et 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 29CFF<part 38. (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, TheoomtracbororsubuonbautorshaUimoert|nanyguboonteuctstheulaunee contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the SRF program may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses 0088114 City °yBozeman Hyalite/Sourdough Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects m09OO's6 in any lower tier subcontracts, The prime contractor shall be responsible for the compliance ' �any � subcnotnaotor|ovverUeraubonnbrantorvvit <� with 5.5. (7) Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.S may begrounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.1Z (8) Compliance with Davis-Bacon and Related Act requirements, All rulings and interpretations of the Davis-Bacon and Related Acts contained |n29CFR parts 1.3, and 5 are herein incorporated bv 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 in2SCFRparts 5 .@, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department ofLabor, or the employees or their representatives, (10) Certification of eligibility. (i) By entering into this onmtrant, the contractor certifies that neither it (nor henr she) nor any person or firm who has an interest in the contractors firm Uaa person orfirm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(e)M>. (ii)No part of this contract shall be subcontracted tn any person or firm ineligible for award mfa Government contract by virtue of section 3(a)of the Davis-Bacon Act or2SCFR5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S, Criminal Code, 18 U�S.C� 1001, (b) Contract Work Hours and Safety Standards Act. The Agency Head shall cause or require the contracting officer to insert the following clauses set forth in paragraphs (b)(1). (2). (3). and (4) of this section in full in any contract inan amount in excess cf $1OO,0OQ and subject to the overtime pnzvisiona of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted im addition tothe clauses required by Sec. 5,5(a) or 4.6 of part 4 of this title. As used in this paragraph, the terms laborers and mechanics include watchmen and guards. (1) Overtime requirements. No contractor nr subcontractor contracting for any part nf the contract work which may require or involve the employment oflaborers or mechanics shall require or permit any such laborer mr mechanic im any vvor&mveeh in which he or she is employed on such work tuwork in excess of forty hours |n such workweek unless such laborer or mechanic receives compensation atarate not |asa than one and one-half times the basic mate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages. |nthe event of any violation ofthe clause set forth in paragraph (b)(1)of this section the contractor and any subcontractor responsible therefore ahe|| be liable for the unpaid wages., In eddd|on, such contractor and subcontractor shall be liable to the United States (in the ooae of work done under contract for the District of Columbia or a territory, to such District nrhosuch territory), for liquidated damages. Such liquidated damages ohe|| be computed with respect tneach individual laborer or mechanic, including watchmen and Qwmrde, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of$18 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1) of this section. (%) Withholding for unpaid wages and liquidated damages. The loan or grant recipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime 0088114 cityvxo,znman Hyalite Treatment Plant Membrane Equipment Procurement Funding Agency Special Provisions for Montana Public Facility Projects VV9oV's7 contractor, or any other federally-assisted contract subject Lo the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section. (4) Subcontracts, The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(1) through (4) of this section and also oclause requiring the subcontractors toinclude these clauses in any lower tier subcontracts. The prime contractor shall bu responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section. (c) In addition to the clauses contained in paragraph (b), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other statutes cited in Sec. 5.1,the Agency Head shall cause V[ require the contracting officer to insert a clause requiring that the contractor n[ subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for o period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working om the contract, Such records shall contain the moma and eddnaoe of each such employee, social security number, correct classifications, hourly rates of wages poid, daily and weekly number ofhours vvnrked, deductions rnade, and actual vvogen paid. Further, the Agency Head shall cause or require the contracting officer bu insert in any such contract eclause providing that 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 loan or grant recipient and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview employees during vvurk|mg hours on the job. 0088114 City of Bozeman Hyalite/Sourdough Treatment Plant Membrane Equipment Procurement Funding Agency are bxpomision`fv^oamunruhic Facility Projects o8900-3n