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Home My Public Portal AboutORD16317SUBSTITUTE BILL NO. 2022-100 SPONSORED BY Councilmember Fitzwater ORDINANCE NO. /603/7 AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A $1,244,046 DESIGN/BUILD AGREEMENT WITH BURNS AND MCDONNELL ENGINERING COMPANY, INC. FOR THE BIOSOLIDS IMPROVEMENTS PROJECT. WHEREAS, Burns and McDonnell Engineering Company, Inc. has selected as the firm best qualified to provide professional design/build services related to the Biosolids Improvement Project. NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. Burns and McDonnell Engineering Company, Inc. is declared to be the best qualified and is hereby approved as the best firm to provide professional design/build services for the Biosolids Improvement Project. Section 2. The Mayor and City Clerk are hereby authorized to execute an agreement with Burns and McDonnell Engineering Company, Inc. for the Biosolids Improvement Project. Section 3. The agreement shall be substantially the same in form and content as that agreement attached hereto as Exhibit A. Section 4. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed: go -2? Presiding Officer ATTEST: Approved: 2_112023 Mayor Carrie Tergin APPROVED AS TO FORM: DBIA Document No. 545 Page 1 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America Progressive Design-Build Agreement This document has important legal consequences. Consultation with an attorney is recommended with respect to its completion or modification. This AGREEMENT is made as of the day of in the year of 2023 , by and between the following parties, for services in connection with the Project identified below: OWNER: City of Jefferson 320 E McCarty St Jefferson City, MO 65101 DESIGN-BUILDER: Burns & McDonnell Engineering Company, Inc. 9400 Ward Parkway Kansas City, MO 64114 PROJECT: Biosolids Improvement at Regional Water Reclamation Facility 401 Mokane Rd Jefferson City, MO 65101 State Revolving Fund: The Missouri State Revolving Fund, established by the sale of Missouri Water Pollution. Control bonds and federal Capitalization Grants to Missouri, is financing this project In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder agree as set forth herein. DBIA Document No. 545 Page 2 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America Article 1 General 1.1 Duty to Cooperate. Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith to permit each party to realize the benefits afforded under this Agreement. 1.2 Definitions. Terms, words and phrases used in this Agreement shall have the meanings given them in DBIA Document No. 535, General Conditions of Contract Between Owner and Design-Builder ("General Conditions of Contract"). 1.3 Design Services. Design-Builder shall, consistent with applicable state licensing laws, provide design services, including architectural, engineering, and other design professional services required by this Agreement. Such design services shall be provided through qualified, licensed design professionals who are either (i) employed by Design-Builder, or (ii) procured by Design- Builder from independent sources. Nothing in this Agreement is intended to create any legal or contractual relationship between Owner and any independent design professional. Article 2 Design-Builder's Services and Responsibilities 2.1 General Services. 2.1.1 Owner shall provide Design-Builder with Owner's Project Criteria during Phase 1 of the Project. 2.2 Phased Services. 2.2.1 Phase 1 Services. Design-Builder shall perform the services of design, pricing, and other services for the Project based on Owner's Project Criteria, as may be revised in accordance with Section 2.1 hereof, as set forth in Exhibit B, Phase 1 Scope of Services. Design-Builder shall perform such services to the level of completion required for Design-Builder and Owner to establish the Contract Price for Phase 2, as set forth in Section 2.3 below. The Contract Price for Phase 2 shall be developed during Phase 1 on an “open-book” basis. Design-Builder’s Compensation for Phase 1 Services is set forth in Section 7.0 herein. The level of completion required for Phase 1 Services is defined in Exhibit B, Phase 1 Scope of Services. 2.2.2 Phase 2 Services. Design-Builder’s Phase 2 services shall consist of the completion of design services for the Work, the procurement of all materials and equipment for the Work, the performance of construction services for the Project, the start-up, testing, and commissioning of the Work, and the provision of warranty services, all as further described in the Phase 2 Contract Price Amendment. Upon receipt of Design-Builder’s proposed Contract Price for Phase 2, Owner may proceed as set forth in Article 2.3. 2.3 Proposal. Upon completion of the Phase 1 Services and any other Basis of Design Documents upon which the parties may agree, Design-Builder shall submit a proposal to Owner (the "Proposal") for the completion of the design and construction for the Project for the Contract Price, which may be based on Design-Builder’s Fee and Cost of the Work with an option for a Guaranteed Maximum Price (GMP). DBIA Document No. 545 Page 3 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 2.3.1 The Proposal shall include the following unless the parties mutually agree otherwise: 2.3.1.1 The Contract Price that may be based on a Design-Builder’s Fee and Cost of the Work, with an option for a GMP, which shall be the sum of: i. Design-Builder’s Fee as defined in Section 7.4.1 hereof; ii. The estimated Cost of the Work as defined in Section 7.5 hereof, inclusive of any Design-Builder’s Contingency as defined in Section 7.6.2 hereof. 2.3.1.2 The Basis of Design Documents, which may include, by way of example, Owner’s Project Criteria, which are set forth in detail and are attached to the Proposal; 2.3.1.3 A list of the assumptions and clarifications made by Design-Builder in the preparation of the Proposal, which list is intended to supplement the information contained in the drawings and specifications and is specifically included as part of the Basis of Design Documents; 2.3.1.4 The Scheduled Substantial Completion Date upon which the Proposal is based, to the extent said date has not already been established under Section 6.2.1 hereof, and a schedule upon which the Scheduled Substantial Completion Date is based and a Project Schedule for the Work; 2.3.1.5 If applicable, a list of Allowance Items, Allowance Values, and a statement of their basis; 2.3.1.6 If applicable, a schedule of alternate prices; 2.3.1.7 If applicable, a schedule of unit prices; 2.3.1.8 If applicable, a statement of Additional Services which may be performed but which are not included in the Proposal, and which, if performed, shall be the basis for an increase in the Contract Price and/or Contract Time(s); 2.3.1.9 If applicable, a Savings provision; 2.3.1.10 If applicable, Performance Incentives; 2.3.1.11 The time limit for acceptance of the Proposal; and 2.3.1.12 An Owner’s permit list, a list detailing the permits and governmental approvals that Owner will bear responsibility to obtain. 2.3.2 Review and Adjustment to Proposal. 2.3.2.1 After submission of the Proposal, Design-Builder and Owner shall meet to discuss and review the Proposal. If Owner has any comments regarding the Proposal, or finds any inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to Design-Builder of such comments or findings. If appropriate, Design-Builder shall, upon receipt of Owner’s notice, make appropriate adjustments to the Proposal. 2.3.2.3 Acceptance of Proposal. If Owner accepts the Proposal, as may be amended by Design-Builder, the Contract Price and its basis shall be set forth in an amendment to this Agreement, when mutually agreed between the parties (Phase 2 Contract Price Amendment). Once the parties have agreed upon the Contract Price and Owner has issued a Notice to Proceed with Phase 2, Design-Builder shall perform the Phase 2 DBIA Document No. 545 Page 4 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America Services, all as further described in the Phase 2 Contract Price Amendment, as it may b e revised. 2.3.2.4 Failure to Accept the Proposal. If Owner rejects the Proposal, or fails to notify Design-Builder in writing on or before the date specified in the Proposal that it accepts the Proposal, the Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options: i. Owner may suggest modifications to the Proposal, whereupon, if such modifications are accepted in writing by Design-Builder, the Proposal shall be deemed accepted and the parties shall proceed in accordance with Section 2.3.2.3 above; ii. Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 7.1.2 hereof without a Contract Price, in which case all references in this Agreement to the Contract Price shall not be applicable; or iii. Owner may terminate this Agreement for convenience in accordance with Article 9 hereof; provided, however, in this event, Design-Builder shall not be entitled to the payment provided for in Section 9.2 hereof. If Owner fails to exercise any of the above options, Design-Builder shall have the right to (a) continue with the Work as if Owner had elected to proceed in accordance with Item 2.3.2.4 ii. above, and be paid by Owner accordingly, unless and until Owner notifies it in writing to stop the Work, (b) suspend performance of Work in accordance with Section 11.3.1 of the General Conditions of Contract, provided, however, that in such event Design- Builder shall not be entitled to the payment provided for in Section 9.2 hereof and the, or (c) may give written notice to Owner that it considers this Agreement completed. If Owner fails to exercise any of the options under Section 2.3.2.4 within ten (10) days of receipt of Design-Builder’s notice, then this Agreement shall be deemed completed. If Owner terminates the relationship with Design-Builder under Section 2.3.2.4(iii), or if this Agreement is deemed completed under this paragraph, then Design-Builder shall have no further liability or obligations to Owner under this Agreement. Article 3 Contract Documents 3.1 The Contract Documents are comprised of the following: 3.1.1 All written modifications, amendments, minor changes, and Change Orders to this Agreement issued in accordance with the General Conditions of Contract; 3.1.2 The Phase 2 Contract Price Amendment referenced in Section 2.3.2.3 herein or the Proposal accepted by Owner in accordance with Section 2.3 herein. 3.1.3 This Agreement, including all exhibits set forth in Article 12; and 3.1.4 Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract; DBIA Document No. 545 Page 5 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America Article 4 Interpretation and Intent 4.1 Design-Builder and Owner, at the time of acceptance of the Proposal by Owner in accordance with Section 2.3 hereof, shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents for any conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement, or if applicable, prior to Owner’s acceptance of the Proposal. 4.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event inconsistencies, conflicts, or ambiguities between or among the Contract Documents are discovered after Owner’s acceptance of the Proposal, Design-Builder and Owner shall attempt to resolve any ambiguity, conflict, or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 3.1 hereof. 4.3 Terms, words, and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract. 4.4 If Owner’s Project Criteria contain design specifications: (a) Design-Builder is entitled to reasonably rely on the accuracy of the information represented in the design specifications and their compatibility with other information set forth in Owner’s Project Criteria, including any design performance specifications; and (b) Design-Builder shall be entitled to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance have been adversely impacted by such inaccurate design specification. 4.5 The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents. 4.6 In the event of some ambiguity in the Contract Documents, the parties shall be deemed to have jointly authored them and nothing shall be construed against or in favor of one party based on it being deemed the sole author. Article 5 Ownership of Work Product 5.1 Work Product. All drawings, specifications and other documents and electronic data, including such documents identified in the General Conditions of Contract, furnished by Design-Builder to Owner under this Agreement (“Work Product”) are deemed to be instruments of service and Design-Builder shall retain the ownership and property interests therein, including but not limited to any intellectual property rights, copyrights, and/or patents, including any Architectural Works, subject to the provisions set forth in Sections 5.2 through 5.5 below. 5.2 Owner’s Limited License upon Project Completion and Payment in Full to Design-Builder. Upon Owner’s payment in full for all Work performed under the Contract Documents, Design-Builder shall grant Owner a limited license to use the Work Product in connection with Owner’s occupancy of this Project only, conditioned on Owner’s express understanding that its alteration of the Work Product without the involvement of Design Builder is at Owner’s sole risk and without liability or legal exposure to Design-Builder or anyone working by or through Design-Builder, including Design Consultants of any tier (collectively the “Indemnified Parties”), and on the Owner’s obligation to provide the indemnity set forth in Section 5.5 herein. DBIA Document No. 545 Page 6 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America The Work Product cannot be used for other projects without Design-Builder’s express written consent and appropriate compensation and agreement on terms of use and indemnity. 5.3 Owner’s Limited License upon Owner’s Termination for Convenience or Design-Builder’s Election to Terminate. If Owner terminates this Agreement for its convenience as set forth in Article 9 hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the General Conditions of Contract, Design-Builder shall, upon Owner’s payment in full of the amounts due Design- Builder under the Contract Documents, grant Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights as set forth in Section 5.2 above, conditioned on the following: 5.3.1 Use of the Work Product is at Owner’s sole risk without liability or legal exposure to any Indemnified Party, and on the Owner’s obligation to provide the indemnity set forth in Section 5.5 herein, and 5.3.2 In the event Owner resumes the Project through its employees, agents, or third parties and in so doing uses the Work Product pursuant to its rights set forth above in Sections 5.2 and 5.3, Owner agrees to pay Design-Builder an additional sum equal to the reasonable value of the Work Product it uses in so doing. 5.4 Owner’s Limited License upon Design-Builder's Default. If this Agreement is terminated due to Design-Builder's default pursuant to Section 11.2 of the General Conditions of Contract, then Design- Builder grants Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section 5.2 above. Notwithstanding the preceding sentence, if it is ultimately determined that Design-Builder was not in default, Owner shall be deemed to have terminated the Agreement for convenience, and Design- Builder shall be entitled to the rights and remedies set forth in Section 5.3 above. 5.5 Owner’s Indemnification for Use of Work Product. Owner recognizes that in the event of an early termination of the Work, whether for convenience or for cause, Design-Builder will not have the opportunity to finish or to finalize its Work Product. Therefore, if Owner uses the Work Product, in whole or in part, or if Owner is required to indemnify any Indemnified Parties based on the use or alteration of the Work Product under any of the circumstances identified in this Article 5, Owner shall defend, indemnify, and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses, and expenses, including attorneys’ fees, arising out of or resulting from the use or alteration of the Work Product, to the fullest extent permitted by applicable law. 5.6 Submission or distribution to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the Design-Builder’s rights. 5.7 The Owner shall not utilize the Documents, designs, or specifications furnished by Design-Builder to solicit bids or obtain negotiated prices from other contractors. 5.8 This Article 5 shall survive any termination of this Agreement by either Party. Article 6 Contract Time 6.1 Date of Commencement. The Phase 1 Services shall commence within five (5) days of Design- Builder’s receipt of Owner’s Notice to Proceed unless the parties mutually agree otherwise in writing. The Phase 2 Services shall commence within five (5) days of Design-Builder’s receipt of Owner’s Notice to Proceed for Phase 2 Services (“Date of Commencement”) if the Proposal is accepted and the Contract Price Amendment is amended to this Agreement unless the parties mutually agree otherwise in writing. DBIA Document No. 545 Page 7 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 6.2 Substantial Completion and Final Completion. 6.2.1 Substantial Completion of the entire Work shall be achieved no later than the date set forth in the Phase 2 Contract Price Amendment (“Scheduled Substantial Completion Date”). Substantial Completion shall be defined as set out in the General Conditions. 6.2.2 Not used. 6.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Section 1.2.7 of the General Conditions of Contract. 6.2.4 All of the dates set forth in this Article 6 (“Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract. 6.2.5 If the Design-Builder is delayed in the progress of this Project by acts or neglect by the Owner, its employees, separate contractors employed by Owner, or others, governmental action, or by change orders in the Work not caused in any part by the fault of the Design-Builder; then the Contract Time for completion shall be extended, and the Contract Amount shall be equitably adjusted by a written Change Order. 6.2.6 Where the Design-Builder reasonably establishes that delays as set forth above or that are caused by shortage of labor, strikes, supply chain issues, lockout, tornado, flood, wind damage, fire, unusual delay in transportation, adverse weather conditions beyond the quantity of lost days anticipated in the Project Schedule per Exhibit “I” Anticipated Lost Days to Inclement / Adverse Weather, explosion, sabotage, accidents, riots, civil commotion, acts of war, casualty, condemnation, or other Force Majeure beyond the Design-Builder’s reasonable control impact the cost and/or Contract Time, the Design-Builder shall be entitled to recover all extra costs and an appropriate extension of the Contract Time. Design-Builder shall provide written notice of the existence of such cause of delay, together with back-up documentation that verifies the impact in accordance with the Contract Documents. 6.2.7 For purposes of determining weather delays, the parties shall use Exhibit “I,” Anticipated Lost Days to Inclement / Adverse Weather. The days shown on Exhibit “I” shall not accumulate month-to-month, but are to be used for determining only the anticipated adverse weather in a given month. Adverse weather for a period of two (2) hours on any day shall constitute one complete day since crews sent home are not able to be re-called once they abandon the Work. Adverse weather days shall also include those days when site conditions are such that Work cannot be performed, or cannot be performed efficiently, due to adverse weather on the preceding day or days (including a weekend) which impact on site conditions. 6.3 Time. Owner and Design-Builder mutually agree that time is important with respect to the dates and times set forth in the Contract Documents. 6.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not attained by the Scheduled Substantial Completion Date in Section 6.2.1 above, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not attained by fourteen (14) days after the Scheduled Substantial Completion Date (the “LD Date”), Design- Builder shall pay Owner Five Hundred Dollars ($500.00) as liquidated damages for each day that Substantial Completion extends beyond the LD Date. 6.5 Any liquidated damages assessed pursuant to this Agreement shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties, and any other damages, whether special or DBIA Document No. 545 Page 8 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America consequential, and of whatsoever nature, incurred by Owner which are occasioned by any delay in achieving Substantial Completion, Interim Milestone Dates (if any) or Final Completion. 6.6 Owner and Design-Builder agree that the maximum aggregate liability Design-Builder has for any liquidated damages that may be assessed under this Agreement shall be Thirty Thousand Dollars ($30,000.00). 6.7 In addition to Design-Builder’s right to a time extension for those events set forth in Section 8.2.1 of the General Conditions of Contract, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price. Article 7 Contract Price 7.1 Contract Price. 7.1.1 For Phase 1 Services, Design-Builder will be paid on an hourly basis in accordance with Exhibit D – Design-Builder’s Phase 1 Hourly Rates. For other expenses incurred such as travel, print services, and services provided by subcontractors, the Design-Builder will be paid the actual cost plus a fee of ten percent (10%). The total payment to Design-Builder for the Phase 1 Services set forth in Exhibit B – Phase 1 Scope of Service shall not exceed One Million, Two Hundred Forty-Four Thousand, Forty- Six Dollars ($1,244,046). Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract, subject to adjustments made in accordance with the General Conditions of Contract. 7.1.2 For Phase 2 Services, Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract a contract price (“Contract Price”) equal to the Design-Builder’s Fee (as defined in Section 7.4 hereof) plus the Cost of the Work (as defined in Section 7.5 hereof), subject to any GMP established in Section 7.6 hereof or as set forth in the Phase 2 Contract Price Amendment and any adjustments made in accordance with the General Conditions of Contract. 7.2 Not Used. 7.3 Markups for Changes. If the Contract Price requires an adjustment due to changes in the Work, and the cost of such changes is determined under Sections 9.4.1.3 or 9.4.1.4 of the General Conditions of Contract, the following markups shall be allowed on such changes: 7.3.1 For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of ten percent (10%) of the additional costs incurred for that Change Order. In addition to mark-up for Fee, Design-Builder shall be entitled to mark-up for insurance and bond in an amount of two percent (2%). 7.3.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include a reduction in the Design- Builder’s Fee consistent with the percentage established in Section 7.4. This percentage will be established in the Phase 2 Contract Price Amendment. 7.4 Design-Builder’s Fee. 7.4.1 Design-Builder’s Fee shall be established in the Phase 2 Contract Price Amendment. The Design-Builder’s Fee will be calculated as a percentage applied to the estimated Cost of the Work. This percentage will be established in the Phase 2 Contract Price Amendment. DBIA Document No. 545 Page 9 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 7.5 Cost of the Work. 7.5.1 The term Cost of the Work shall mean costs reasonably incurred by Design-Builder in the proper performance of the Work. The Cost of the Work shall include only the following: 7.5.1.1 Design-Builder’s employees engaged in the performance of the Work and who are located at the Site or working off-Site at the rates as set forth in Exhibit E – Design-Builder’s Phase 2 Hourly Rates. 7.5.1.2 The reasonable portion of the cost of travel, accommodations and meals for Design-Builder’s personnel necessarily and directly incurred in connection with the performance of the Work, including per diem and site vehicles for staff temporarily stationed at the Site. 7.5.1.3 Payments properly made by Design-Builder to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants. 7.5.1.4 Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work (including any warranty or corrective Work performed after Substantial Completion), provided that such Work was beyond the reasonable control of Design-Builder, or caused by the ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or those working by or through Design-Builder. If the costs associated with such Work are recoverable from insurance, Subcontractors or Design Consultants, Design-Builder shall exercise best efforts to obtain recovery from the appropriate source and provide a credit to Owner if recovery is obtained. 7.5.1.5 Costs, including transportation, inspection, testing, storage, and handling of materials, equipment, and supplies incorporated or reasonably used in completing the Work. 7.5.1.6 Costs of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design-Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining, dismantling, and removing such items. 7.5.1.7 Costs of removal of debris and waste from the Site. 7.5.1.8 The reasonable costs and expenses incurred in establishing, operating and demobilizing the Site office, including the cost of facsimile transmissions, long-distance telephone calls, postage and express delivery charges, telephone service, photocopying, and reasonable petty cash expenses. 7.5.1.9 Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others, and incurred in the performance of the Work. 7.5.1.10 Premiums for insurance and bonds required by this Agreement or the performance of the Work. 7.5.1.11 Insurance deductibles and expenses arising out of insurance claims associated with the performance of the Work. DBIA Document No. 545 Page 10 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 7.5.1.12 All fuel and utility costs incurred in the performance of the Work. 7.5.1.13 Sales, use, or similar taxes, tariffs, or duties incurred in the performance of the Work. 7.5.1.14 Legal costs, court costs, and costs of mediation and arbitration reasonably arising from Design-Builder’s performance of the Work, provided such costs do not arise from disputes between Owner and Design-Builder. 7.5.1.15 Costs for permits, royalties, licenses, tests and inspections incurred by Design- Builder as a requirement of the Contract Documents. 7.5.1.16 The cost of defending suits or claims for infringement of patent rights arising from the use of a particular design, process, or product required by Owner, paying legal judgments against Design-Builder resulting from such suits or claims, and paying settlements made with Owner’s consent. 7.5.1.17 Deposits which are lost, except to the extent caused by Design-Builder’s negligence. 7.5.1.18 Costs incurred in preventing damage, injury, or loss in case of an emergency affecting the safety of persons and property. 7.5.1.19 Accounting and data processing costs related to the Work. 7.5.1.20 Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner. 7.5.1.21 Owner and Design-Builder agree that an escrow account shall be established prior to Final Completion, which escrow shall be used to reimburse Design-Builder for the Costs of the Work incurred after Final Completion to perform warranty Work. The amount to be deposited into the escrow account will be established in the Phase 2 Contract Price Amendment. The escrow agreement will provide that any sums not used at the expiration of the warranty period shall be returned to Owner, subject to any savings Design-Builder may be entitled to under this Agreement. In the event the warranty escrow account is exhausted, but funds remain under the GMP, Owner shall be obligated to pay Design- Builder the Costs of the Work incurred after Final Completion to perform warranty Work up to the GMP. 7.5.1.22 Design-Builder has the sole discretion to apply payment due to overruns in one line item to savings due to under-runs in any other line item. 7.5.2 Non-Reimbursable Costs. The following shall be excluded from the Cost of the Work: 7.5.2.1 Compensation for Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, except as provided for in Sections 7.5.1.1 hereof. 7.5.2.2 Overhead and general expenses, except as provided for in Section 7.5.1 hereof, or which may be recoverable for changes to the Work. 7.5.2.3 The cost of Design-Builder’s capital used in the performance of the Work. 7.5.2.4 If the parties have agreed on a GMP, costs that would cause the GMP, as adjusted in accordance with the Contract Documents, to be exceeded. 7.6 The Guaranteed Maximum Price. DBIA Document No. 545 Page 11 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 7.6.1 Design-Builder guarantees that it shall not exceed the GMP established in the Phase 2 Contract Price Amendment. Documents used as a basis for the GMP shall be identified in the Phase 2 Contract Price Amendment to this Agreement. Design-Builder does not guarantee any specific line item provided as part of the GMP, and has the sole discretion to apply payment due to overruns in one line item to savings due to underruns in any other line item. Design-Builder agrees, however, that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with the Contract Documents. 7.6.2 The GMP will include a Contingency, the amount of which will be established in the Phase 2 Contract Price Amendment. The Contingency is available for Design-Builder’s exclusive use for unanticipated costs it has incurred that are not the basis for a Change Order under the Contract Documents. By way of example, and not as a limitation, such costs may include: (a) trade buy-out differentials; (b) overtime or acceleration; (c) escalation of materials; (d) correction of defective, damaged or nonconforming Work, design errors or omissions, however caused; (e) Subcontractor defaults; or (f) those events under Section 8.2.2 of the General Conditions of Contract that result in an extension of the Contract Time but do not result in an increase in the Contract Price. The Contingency is not available to Owner for any reason, including changes in scope or any other item which would enable Design-Builder to increase the GMP under the Contract Documents. Design-Builder shall provide Owner notice of all anticipated charges against the Contingency, and shall provide Owner as part of the monthly status report required by Section 2.1.2 of the General Conditions of Contract an accounting of the Contingency, including all reasonably foreseen uses or potential uses of the Contingency in the upcoming three (3) months. Design-Builder agrees that with respect to any expenditure from the Contingency relating to a Subcontractor default or an event for which insurance or bond may provide reimbursement, Design-Builder will in good faith exercise reasonable steps to obtain performance from the Subcontractor and/or recovery from any surety or insurance company. Design-Builder agrees that if Design-Builder is subsequently reimbursed for said costs, then said recovery will be credited back to the Contingency. 7.6.3 Savings. 7.6.3.1 If the sum of the actual Cost of the Work and Design-Builder’s Fee is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference (“Savings”) shall be shared as follows: Fifty percent (50%) to Design-Builder and Fifty percent (50%) to Owner. 7.6.3.2 Savings shall be calculated and paid as part of Final Payment under Section 8.4 hereof, with the understanding that to the extent Design-Builder incurs costs after Final Completion which would have been payable to Design-Builder as a Cost of the Work, the parties shall recalculate the Savings in light of the costs so incurred, and Design-Builder shall be paid by Owner accordingly. 7.7 Allowance Items and Allowance Values. 7.7.1 Allowance Items, as well as their corresponding Allowance Values, are set forth in the Phase 2 Contract Price Amendment or the Proposal. 7.7.2 Design-Builder and Owner have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Item s. Design-Builder and Owner will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to DBIA Document No. 545 Page 12 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value. 7.7.3 No work shall be performed on any Allowance Item without Design-Builder first obtaining in writing advanced authorization to proceed from Owner. Owner agrees that if Design-Builder is not provided written authorization to proceed by the date set forth in the Project schedule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price. 7.7.4 The Allowance Value includes the direct cost of labor, materials, equipment, transportation, taxes, and insurance associated with the applicable Allowance Item. 7.7.5 Whenever the actual cost for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjusted accordingly by Change Order, subject to Section 7.3. The amount of the Change Order shall reflect the difference between actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value, with an adjustment to the Design-Builder’s Fee in accordance with Section 7.3. 7.8 Not Used. Article 8 Procedure for Payment 8.1 Payment for Preliminary Services. Design-Builder and Owner agree upon the following method for partial and final payment to Design-Builder for the services hereunder: For Phase 1 Services, Design-Builder will submit an Application for Payment to Owner each month based on work completed during the period since the last Application for Payment was submitted. 8.2 Contract Price Progress Payments. 8.2.1 Design-Builder shall submit to Owner on the Fifth (5th) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract. 8.2.2 Owner shall make payment within ten (10) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract. 8.2.3 If Design-Builder’s Fee under Section 7.4 hereof is a fixed amount, the amount of Design- Builder’s Fee to be included in Design-Builder’s monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder’s Fee. 8.3 Retainage on Progress Payments. 8.3.1 Owner will retain five percent (5%) of each Application for Payment provided, however, that when fifty percent (50%) of the Work has been completed by Design-Builder by cost, and Design-Builder is otherwise in compliance with its contractual obligations, Owner will not retain any additional retention amounts from Design-Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Subcontractors completing their work early in the Project. DBIA Document No. 545 Page 13 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 8.3.2 Within fifteen (15) days after Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to: (a) the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion; and (b) all other amounts Owner is entitled to withhold pursuant to Section 6.3 of the General Conditions of Contract. 8.3.3 If a warranty reserve has been established pursuant to Section 7.5.1.23 above, Owner shall at the time of Substantial Completion retain the agreed-upon amounts and establish an escrow account as contemplated by Section 7.5.1.23 above. 8.4 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design- Builder’s properly submitted and accurate Final Application for Payment (less any amount the parties may have agreed to set aside for warranty work) within ten (10) days after Owner’s receipt of the Final Application for Payment, provided that: (a) Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract. 8.5 Interest. Payments due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall bear interest commencing five (5) days after payment is due at the rate of one and one- half percent (1.5%) per month until paid. In any legal action or arbitration by Design-Builder to recover amounts due and not paid, Design-Builder shall be permitted to recover its attorney’s fees and costs from Owner. 8.6 Record Keeping and Finance Controls. Design-Builder acknowledges that this Agreement is to be administered on an “open book” arrangement relative to Costs of the Work. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded access to, and the right to audit from time to time, upon reasonable notice, Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda, and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment. Such inspection shall take place at Design-Builder’s offices during normal business hours unless another location and time is agreed to by the parties. Any billing rates, rate sheets, multipliers, or markups agreed to by the Owner and Design-Builder as part of this Agreement are only subject to audit to confirm that such billing rate, rate sheet, multiplier, or markup has been charged in accordance with this Agreement, but the composition of such billing rate, rate sheet, multiplier, or markup is not subject to audit. Any lump sum agreed to by the Owner and Design-Builder as part of this Agreement is not subject to audit. Such inspection shall take place at Design-Builder’s offices during normal business hours unless another location and/or time is agreed by the parties. Article 9 Termination for Convenience 9.1 Upon ten (10) days’ written notice to Design-Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following: 9.1.1 All services performed and Work executed and for loss, cost, or expense in connection with the services and Work; DBIA Document No. 545 Page 14 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 9.1.2 The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants; and 9.1.3 Overhead and profit in the amount of ten percent (10%) on the sum of items 9.1.1 and 9.1.2 above. 9.2 In addition to the amounts set forth in Section 9.1 above, Design-Builder shall be entitled to receive one of the following as applicable: 9.2.1 If Owner terminates this Agreement prior to commencement of construction, Design- Builder shall be paid in full for the Phase 1 services already rendered, plus three percent (3%) of the remaining balance of the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price. 9.2.2 If Owner terminates this Agreement after commencement of construction, Design-Builder shall be paid five percent (5%) of the remaining balance of the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price. 9.3 If Owner terminates this Agreement pursuant to Section 9.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner’s rights to use the Work Product shall be as set forth in Section 5.3 hereof. Such rights may not be transferred or assigned to others without Design-Builder’s express written consent and such third parties’ agreement to the terms of Article 5. Article 10 Representatives of the Parties 10.1 Owner’s Representatives. 10.1.1 Owner designates the individual listed below as its Senior Representative (“Owner Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.) Name: ___________________________________ Title: ____________________________________ Address:__________________________________ ______________________________________ Telephone No.: _____________________________ E-mail.: _____________________________ 10.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.) Name: ___________________________________ Title: ____________________________________ Address:__________________________________ ______________________________________ Telephone No.: _____________________________ E-mail.: _____________________________ DBIA Document No. 545 Page 15 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 10.1.3 The Owner represents and warrants to Design-Builder that Owner, if not the true owner of the real property upon which the Project is to be built, is the agent of the true owner, with express legal authority to enter into this Agreement for the purpose of improving that real property. The property cannot be used for the purpose intended by this Agreement without the making of the improvements described herein. 10.2 Design-Builder’s Representatives. 10.2.1 Design-Builder designates the individual listed below as its Senior Representative (“Design-Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.) Name: ___________________________________ Title: ____________________________________ Address:__________________________________ ______________________________________ Telephone No.: _____________________________ E-mail.: _____________________________ 10.2.2 Design-Builder designates the individual listed below as its Design-Builder’s Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.) Name: ___________________________________ Title: ____________________________________ Address:__________________________________ ______________________________________ Telephone No.: _____________________________ E-mail.: _____________________________ Article 11 Bonds and Insurance 11.1 Insurance. Design-Builder and Owner shall procure the insurance coverages set forth below and in accordance with Article 5 of the General Conditions of Contract. Design-Builder shall include Owner as an additional insured on the Commercial General Liability, Automobile Liability and Umbrella/Excess Liability insurance policies required herein. The Commercial General Liability, Automobile Liability and Umbrella/Excess Liability insurance policies shall include a waiver of subrogation in favor of Owner. TYPE: REQUIRED LIMITS: 1. Worker's Compensation Insurance Statutory Amount 2.Employer's Liability $500,000 by disease, $500,000 each accident, $500,000 each employee by disease 3.Commercial General Liability (CGL) General Aggregate: $2,000,000 Completed Operations Aggregate: $2,000,000 Limit Per Occurrence: $1,000,000 DBIA Document No. 545 Page 16 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America 4. Automobile Liability: (Hired, Owned and Non-owned Included) Combined Single Limit per Accident $1,000,000 5. Builder's Risk Contract/Completed Value of Project Work At the time of placement prior to mobilization to the site and/or construction start whichever is earlier, Design-Builder will provide an all-risk Builder’s Risk insurance policy insuring the Work during construction at the Project site with a limit equal to the Contract/Completed Value of the Work, until Substantial Completion of the Work. This policy will include the Owner, subcontractors of every tier as additional insureds and include the suppliers, vendors, manufacturers, architects, and engineers as additional insureds as their interest appear while on the Project site. This policy shall include a waiver of subrogation in favor of Owner. 6. Umbrella/Excess Policy $1,000,000 per occurrence and in the aggregate 11.2 Bonds and Other Performance Security. Design-Builder shall provide the following performance bond and labor and material payment bond or other performance security for Phase 2 Services: Performance Bond. Required Not Required Payment Bond. Required Not Required Article 12 Other Provisions 12.1 General Exclusions 12.1.1 Owner acknowledges that if conditions at the site differ from those shown in the survey and soils report, such costs shall be reimbursable outside of the GMP sum. Design-Builder’s GMP is premised on the assumptions, clarifications, and exclusions shown in Exhibit “C”. 12.2 Statutory Notices NOTICE TO OWNER FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC'S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR "LIEN WAIVERS" FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO ME A WAIVER OF DBIA Document No. 545 Page 17 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America ANY PROTECTIONS DUE TO GOVERNMENTAL BODIES FROM MECHANIC'S OR MATERIALMAN'S LIENS. 12.3 Special Provisions 12.3.1 Buy American Iron and Steel Products. In accordance with Sec. 608.(a) of the Federal Water Pollution Control Act, the Design-Builder assures that it, as well as its subcontractors, will only use iron and steel products in the Project which are produced in the United States in a manner consistent with United States obligations under international agreements. The term “iron and steel products” means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. The Design-Builder understands that this requirement may only be waived by the applicable federal agency in limited situations as set out in Sec. 608.(d) of the Federal Water Pollution Control Act. Items of de minimis value (5% of the total materials cost) will be waived from this requirement. A waiver is also granted for pig iron and direct reduced iron manufactured outside the U.S. in the manufacturing of pig iron and steel products. 12.3.2 Domestic Products Procurement Law. All manufactured goods or commodities used or supplied in the performance of any contract or subcontract awarded on this Project shall be manufactured, assembled, or produced in the United States, unless obtaining American-made products would increase the cost of the goods or commodities by more than ten (10%). In accordance with sections 34.350 through 34.359 RSMo a waiver may be requested from the Owner. 12.3.3 Davis-Bacon Act Requirements. The Design-Builder will pay, and require its subcontractors to pay, all laborers and mechanics employed on the Project at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with Subchapter IV of Chapter 31 of Title 40, United States Code (Davis-Bacon Act), as required by Sec. 602(b)(6) of the Federal Water Pollution Control Act. The Design-Builder agrees to include information about these requirements in solicitation documents. To the extent that the work performed by Design-Builder is subject to prevailing wage law, Contractor shall pay a wage of no less than the "prevailing hourly rate of wages" for work of a similar character in this locality, as established by Department of Labor and Industrial Relations of the State of Missouri, and as established by the Federal Employment Standards of the Department of Labor. Design-Builder acknowledges that Design-Builder knows the prevailing hourly rate of wages for this project because Design-Builder has obtained the prevailing hourly rate of wages from the contents of the current Annual Wage Order No. 29, Section 014; Callaway County rates as set forth in Exhibit L. The Design-Builder further agrees that Design-Builder will keep an accurate record showing the names and occupations of all workmen employed in connection with the work to be performed under the terms of this contract. The record shall show the actual wages paid to the workmen in connection with the work to be performed under the terms of this contract. A copy of the record shall be delivered to the Purchasing Agent of the Jefferson City Finance Department each week. In accordance with Section 290.250 RSMo, Contractor shall forfeit to the City One Hundred Dollars ($100.00) for each workman employed, for each calendar day or portion thereof that the workman is paid less than the stipulated rates for any work done under this contract, by the Contractor or any subcontractor under the Contractor. 12.3.4 Pursuant to §285.530.1, RSMo, the Design-Builder assures that it, as well as its subcontractors, do not knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Missouri, and shall affirm, by sworn affidavit and provision of documentation, its enrollment and participation in a federal work authorization program with respect to the employees working in connection with the contracted services. Further, the Design-Builder assures that it, as well as its subcontractors, shall sign an affidavit affirming that it does not knowingly employ any person DBIA Document No. 545 Page 18 Progressive Design-Build Agreement for Water and Wastewater Projects © 2016 Design-Build Institute of America who is an unauthorized alien in connection with the contracted services. In accordance with sections 285.525 to 285.550, RSMo a general contractor or subcontractor of any tier shall not be liable when such contractor or subcontractor contracts with its direct subcontractor who violates subsection 1 of section 285.530, RSMo if the contract binding the contractor and subcontractor affirmatively states that the direct subcontractor is not knowingly in violation of subsection 1 of section 285.530, RSMo and shall not henceforth be in such violation and the contractor or subcontractor receives a sworn affidavit under the penalty of perjury attesting to the fact that the direct subcontractor’s employees are lawfully present in the United States. 12.3.5 Anti-Lobbying Act. The Parties shall comply with the Anti-Lobbying Act, Section 319 of Public Law 101-121, and file an Anti-Lobbying Certification form, and the Disclosure of Lobbying Activities form, if required. 12.3.6 Equal Employment Opportunity 41 CFR 60-4; E.O. 11246. The goals and timetables for minority and female participation, expressed in percentage terms for the Design-Builder’s aggregate workforce in each trade on all construction work in the covered area, are as follows: Timetables Goals for minority participation for each trade Goals for female participation in each trade All years 10% 5% These goals are applicable to all the Design-Builder’s construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the Design-Builder performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the Design-Builder also is subject to the goals for both its federally involved and non-federally involved construction. The Design-Builder’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth in 41 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 Design-Builder shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the Contractor’s goals shall be a violation of the contract, the Executive Order and the regulations in 41 CFR Part 60-4. Compliance with the goals will be measured against the total work hours performed. The Design-Builder shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 10 working days of award of any 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 of 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 subcontract is to be performed. 12.4 Listing of Exhibits and documents incorporated herein: Exhibit A – Not Used Exhibit B – Phase 1 Scope of Services Exhibit C – Assumptions, Clarifications & Exclusions – Not applicable to Phase 1 Exhibit D – Design-Builder’s Phase 1 Hourly Rates Exhibit E – Design-Builder’s Phase 2 Hourly Rates – Not applicable to Phase 1 Exhibit F – DBIA Document No. 535, General Conditions of Contract Between Owner and Design- Builder (2010 Edition) ("General Conditions of Contract") Exhibit G – Design-Builder’s Allowances – Not Applicable to Phase 1 Exhibit H – Permit & Easement Matrix – Not applicable to Phase 1 Exhibit I — Anticipated Lost Days to Inclement / Adverse Weather — Not applicable to Phase 1 Exhibit J — Project Schedule — Not applicable to Phase 1 Exhibit K — Geotechnical Soils Report — Not applicable to Phase 1 Exhibit L - State/Federal Wage Rates Exhibit M - Additional State Revolving Loan fund Provisions Article 13 Limitation of Liability 13A Limitation. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of Design -Builder, its Design Consultants, and Subcontractors, surety (if any) and their respective officers, directors, employees, and agents, and any of them, to Owner and anyone claiming by, through or under Owner, for any and all claims, losses, liabilities, costs, or damages whatsoever arising out of, resulting from, or in any way related to, the Project or this Agreement from any cause, including but not limited to the negligence, indemnity, professional errors or omissions, strict liability, breach of contract, or warranty (express or implied) shall not exceed One Hundred percent (100%) of the Contract Price. The parties agree that specific consideration has been given by the Design -Builder for this limitation and that it is deemed adequate. In executing this Agreement, Owner and Design -Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein. THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. OWNER: DESIGN -BUILDER: (Name of Owner) (Name of Design -Builder) (Signature) (Signature) (Printed Name) (Printed Name) (Title) (Title) Date: Date: Approved as to form: DBIA Document No. 545 Progressive Design -Build Agreement for Water and Wastewater Projects © 2016 Design -Build Institute of America Page 19 Exhibit I — Anticipated Lost Days to Inclement / Adverse Weather — Not applicable to Phase 1 Exhibit J — Project Schedule — Not applicable to Phase 1 Exhibit K — Geotechnical Soils Report — Not applicable to Phase 1 Exhibit L - State/Federal Wage Rates Exhibit M - Additional State Revolving Loan fund Provisions Article 13 Limitation of Liability 13.1 Limitation. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of Design -Builder, its Design Consultants, and Subcontractors, surety (if any) and their respective officers, directors, employees, and agents, and any of them, to Owner and anyone claiming by, through or under Owner. for any and all claims. losses. liabilities. costs, or damages whatsoever arising out of. resulting from. or in any way related to. the Project or this Agreement from any cause, including but not limited to the negligence, indemnity, professional errors or omissions. strict liability, breach of contract, or warranty (express or implied) shall not exceed One Hundred percent (100%) of the Contract Price. The parties agree that specific consideration has been given by the Design -Builder for this limitation and that it is deemed adequate. In executing this Agreement, Owner and Design -Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein. THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. OWNER: (Signature) eartrti (Printed Name) it/talef (Title) Date: 9--2.1 2023 Approved as to form: DESIGN-IBUI D '. 444- kakriaitzti&' & 1 c, uilder) DBIA Document No. 545 Progressive Design -Build Agreement for Water and Wastewater Projects © 2016 Design -Build Institute of America Page 19 PAGE 1 OF 5 Exhibit B – Phase 1 Scope of Services Project Kickoff Meeting Design-Builder shall coordinate and lead a Project Kickoff meeting at the facility. During the Project Kickoff meeting, the collective project team will identify the project goals, coordinate activities, discuss project requirements, establish a project schedule, identify key project issues/concerns, identify key personnel who are to provide input on the project, and get initial input on design items. Progress Meetings/Conference Calls Design-Builder will prepare for, attend, and conduct monthly design progress meetings. These meetings will be held either at the City’s offices or virtually. Design-Builder will provide meeting minutes with a decision log and a list of action items. Meeting minutes will be distributed via e-mail. Phase 1 will be a nine (9) month (270 Day) duration. This task assumes a total of five (5) onsite meetings with the remainder of the progress meetings being virtual. Project Management This task is for internal coordination of the individual disciplines, budget tracking, and invoice preparation. Quality Control/Quality Assurance The project team will follow BMcD’s QA/QC program. This task includes internal review of the project by qualified staff. Review of Existing Studies, Reports, Flow/Load Data, & Design Documents Design-Builder will collect and review existing reports/design documents and facility operational data to support our understanding of the facility. This information will be used to generate a baseline for the planning and design of the new upgrades. Information provided by Owner will be assumed accurate and complete without independent verification. Project Schedule Design-Builder will develop a master project schedule in critical path format that includes all major design activities. The schedule shall be updated monthly. Phase 1 will be a nine (9) month duration. Additional Equipment Scope Evaluation Design-Builder will perform an additional site visit and review available design documents/drawings for each of the other scope items not covered in the previous Biosolids Management Study, including the following: ► Electrical – Evaluation of replacing multiple existing generators with a single generator for the entire facility, requiring review of existing drawings, review of loads across the facility, and one day of gathering site data ► Structural – One day on-site for visual observation of the lime storage silo ► Odor Control – Evaluation of gravity thickeners to determine feasibility and benefits of adding odor control covers, requiring review of existing drawings and coordination with equipment manufacturers ► Grit Removal – Evaluation of replacing grit removal equipment within the existing grit chambers. ► Grit Dewatering – Evaluation of replacing two grit classifiers with a similar technology, within the existing Headworks Building. The Design-Builder will summarize the information collected from the evaluations to deliver a technical memorandum providing recommendations and opinions of probable cost. The City will use the memorandum to determine if additional upgrades will be added to the design project's scope via an amendment. Initial Project Scoping – Opinion of Probable Construction Cost After the Design-Builder conducts the Additional Equipment Scope Evaluation, the Owner will confirm the scope to be included in the project. Before the Design-Builder proceeds with Conceptual Design Services, the Design-Builder will prepare an opinion PAGE 2 OF 5 of probable cost for the project. The City and Design-Builder will meet to review the cost. The City will then confirm the project scope. Geotechnical Investigation Assistance Design-Builder shall subcontract with a licensed geotechnical firm to conduct soil borings and laboratory tests at key locations as needed to determine subsurface conditions. The geotechnical firm shall provide a geotechnical report with recommendations for the foundation and design of new centrifuge building and various site paving. Survey Design-Builder shall subcontract with a licensed surveyor to conduct field surveys in sufficient detail to provide a topographic map suitable for detailed design. The survey shall show property boundaries and easements necessary for the project, as well as the location of all known utilities and surface features that are likely to affect the project. Existing Lime Storage Silos Inspection Design-Builder shall subcontract with a certified SSPC QP-5 inspection company to inspect the coatings on the existing lime silos and provide an inspection report. The report will include photos and be based on common painting practices developed by NACE and SSPC. The report will include recommendations on coating rehabilitation. Model Development Design-Builder will utilize existing as-built pdf documents to create an as-built 3D Model (in Autodesk Revit) of the existing infrastructure. This task only consists of modeling the existing infrastructure, as necessary, to complete the design of this project. Permitting Design-Builder will coordinate with MDNR for required permitting and project approval requirements. Design-Builder does not anticipate that MDNR will require a permit for this project. Additionally, the Design-Builder will assemble a list of anticipated permits required for the project. The Design-Build will research requirements for the following entities to create this list; Environmental Protection Agency (EPA), US Army Corps of Engineers, Jefferson City Memorial Airport, and the Jefferson City Building Department. The City and Design-Builder will meet to review the list and determine responsible parties for obtaining the permits. Conceptual Design Documents Conceptual Design Services will include a Basis of Design Report (BODR) that documents basis of design for each unit process and a codes and standards review. During conceptual design, the Design-Builder will also establish a Contract Drawing and specification list for the Preliminary Design. The following engineering discipline-specific deliverables will be included as part of the Concept Design: ► Civil Site: Establish general location of new facilities, identify laydown areas, preliminary grading plan, and basic yard piping elements. ► Structural: Identify structural design requirements for the facility and recommended materials of construction. ► Architectural: General arrangement and footprint of major structures, occupancy code, major materials of construction, elevation and section drawings. ► Mechanical: Identify classification of key areas of the facility per NFPA 820. ► Process: Document capacity and process design criteria, develop process flow diagrams for the solid stream process, include process-level process and instrumentation diagrams [showing equipment, lines/valves (material, type and size), and instruments], and develop general site layout and yard piping corridors. ► Electrical/Instrumentation: Coordinate site layout with electrical distribution, develop conceptual one-line diagrams, prepare preliminary load calculations, prepare preliminary control system architecture, develop preliminary process instrumentation diagram (PID) based on process flow diagram, and size major electrical equipment. This scope does PAGE 3 OF 5 not include any cost for the Utility provider. Additional cost may be required for the Utility to evaluate their existing service, as well as any new utility requirements. The City shall be given at least one (1) week to review the plans and outline specifications prior to holding a review meeting. PDF documents of the plans along with the specifications will be provided to the City for review. The design fee estimate is based on the following primary upgrades at the facility. Should any infrastructure upgrades deviate from the scope outlined below, or the City decides to perform additional upgrades following the evaluation of existing infrastructure, this will be considered supplemental services and require an amendment: Gravity Thickeners ► Replace-in-kind internal scraper mechanisms in both thickeners Existing Dewatering Building ► Solids handling pumps o Replace-in-kind thickened sludge pumps o Replace-in-kind scum pump o New centrifuge feed pumps (or could be located in new Dewatering Building) o Recoat basement room process piping associated with solids handling pumps ► Lime Stabilization System o Replace-in-kind blower and pneumatic transfer system between silos ► Dry Polymer System o Replace dry polymer feed system with like technology ► Replace some windows, doors, and floor hatches ► Install H2S sensors New Dewatering Building ► Demolish biofilter cells ► Replace-in-kind and relocate VS456 tank ► New pre-engineered metal dewatering building to include: o New dewatering centrifuges o New dewatered cake conveyor o New sludge-lime blender o New sludge loadout bay with conveyor o New polymer feed point from existing dewatering building dry polymer system o New electrical room to power centrifuges and appurtenances Conceptual Design Opinion of Probable Construction Cost Based on the conceptual design documents, Design-Builder will prepare an opinion of probable cost for the project. This cost opinion will be submitted along with the design documents for review and comment by the City. The cost opinion will be based on recent bid tabulation information, historical cost data, and discussions with local suppliers and contractors. All assumptions will be included for reference. Conceptual Design Review Meeting After the City has had an opportunity to review the conceptual design documents, Design-Builder shall conduct a conceptual design review meeting. The purpose of this meeting is to provide the City and Design-Builder an opportunity to clarify City comments on the documents. Design-Builder will provide meeting minutes with a decision log and a list of action items. Meeting minutes will be distributed via e-mail and document comments will be incorporated into the preliminary design documents as appropriate. Preliminary Design Documents Preliminary Design Services will include detailed design progression information with respect to civil, structural, architectural, mechanical, process, and electrical work, controls work, major equipment lists, and sequences of operations. A preliminary 3D PAGE 4 OF 5 Model will be developed in Revit, Plant 3D or Civil 3D based on the discipline. The following design deliverables, including drawings, draft specifications, and a written work description will be developed: ► Civil Site: Draft site plan, rough grading plan, and yard piping. Draft specifications started. ► Structural: Draft plan and section drawings of each structure completed, structure calculations complete, and draft specifications started. ► Architectural: Draft plans developed drawings for the new building, draft demolition requirements, and draft specifications started. ► Mechanical: Develop U-value and heat load calculations, establish required ventilation rates for the new building, size equipment, provide general arrangement of equipment, develop equipment schedule and sequence of operation. Draft specifications started. No riser diagrams will be developed. ► Process: Draft plans and specifications will be started for all unit processes. Process flow diagram, major equipment list, and process and instrumentation diagrams will be finalized. ► Electrical/Instrumentation: Develop draft instrumentation details, update instrumentation device schedule, develop rough draft I/O list, detailed control system block diagram, and finalize process and instrumentation drawings. Draft sequence of operations completed. The City shall be given at least one (1) week to review the plans and outline specifications prior to holding the Preliminary Design Review Meeting. PDF documents of the plans along with the specifications will be provided to the City for review. Preliminary Design Opinion of Probable Construction Cost Based on the preliminary design documents, Design-Builder will prepare an opinion of probable cost for the project. This cost opinion will be submitted along with the design documents for review and comment by the City. The cost opinion will be based on recent bid tabulation information, historical cost data, and discussions with local suppliers and contractors. All assumptions will be included for reference. Preliminary Design Review Meeting After the City has had an opportunity to review the Preliminary design documents, Design-Builder will conduct a preliminary design review meeting. The purpose of this meeting is to provide the City and Design-Builder an opportunity to clarify City comments on the documents. Design-Builder will provide meeting minutes with a decision log and a list of action items. Meeting minutes will be distributed via e-mail and comments will be incorporated as appropriate. Phase 2 Pricing Development Design-Builder will provide a Phase 2 Price Proposal based on the Preliminary Design Documents. This pricing will be compiled in an open book format to give the Owner transparency into pricing development. Design-Builder will complete the following tasks to produce the Phase 2 Pricing Proposal: ► Generate a Phase 2 Price estimate based on the Preliminary Design. ► Develop a Procurement Plan for approval by the Owner. This Procurement Plan will identify how the Design-Builder will delineate the work scopes to complete construction of the project in Phase 2. The work will be divided into Subcontract Packages. Each Subcontract Package will be accompanied by a list of potential bidders. The Procurement Plan will also identify all permanent equipment and materials to be directly procured by the Design-Builder, accompanied by a list of proposed vendors and manufacturers for each. If the Design-Builder proposes to self- perform any work, this work will also be identified in the Procurement Plan. ► The Owner is seeking financing through the Missouri State Revolving Fund. As such, there are procurement requirements that the project will need to meet. The Procurement Plan will outline these requirements and describe PAGE 5 OF 5 how the requirements will be met through the subcontracting and procurement process. The Owner and Design- Builder will review this information jointly in the Procurement Plan to confirm the requirements are adequate. ► Design-Builder will conduct a prequalification process to confirm the proposed subcontractors meet the minimum safety and financial requirements to participate in the project. ► Design-Builder will develop Request for Proposal (RFP) documents for each subcontract and procurement package identified in the Procurement Plan. The RFP will include the necessary commercial and design documents to solicit competitive pricing from subcontractors and vendors at the Preliminary Design stage. ► The Design-Builder will conduct the procurement process for each subcontract and procurement package. This includes issuing the RFP documents to prequalified subcontractors and vendors, managing correspondence from bidders including receiving questions and responding through the issuance of addenda, conducting pre-bids and site walks with bidders as required, and receiving bidder proposals. ► Design-Builder will evaluate subcontractor and vendor proposals. This will include analyzing bid schedules submitted in the proposals, reviewing clarifications and exceptions provided by bidders, and conducting bid review meetings with bidders as required. The Design-Builder will use the data collected through this review process to tabulate the bids and provide a comparison for each package. The Design-Builder will use this information as an input into the Phase 2 Pricing Proposal. ► Design-Builder will develop a Phase 2 project schedule in critical path format that includes all final design and preconstruction activities. Design-Builder will host a Phase 2 Price review workshop with Owner to review the Phase 2 Price build-up/estimate, equipment bid tabs, proposed Phase 2 project schedule, clarifications, and proposed allowance items. MDNR Review/Coordination Design-Builder shall prepare and submit the plans and specifications to MDNR for their review and comment. Comments will be addressed and appropriately shown in the drawings to permit the project with the State of Missouri. Hours Cost Direct CostProject Management248 $64,416 $2,580 66,996$ Project Team Kickoff Meeting64 $14,807 $5,590 20,397$ Project Schedule10 $2,516 $100 2,616$ Progress Meetings/Conference Calls 372 $86,498 $13,460 99,958$ Quality Control/Quality Assurance 162 $37,985 $1,520 39,505$ Review of Existing Studies, Reports, Flow/Load Data, & Design Documents 150 $30,832 $1,230 32,062$ Additional Equipment Scope Evaluation 184 $38,129 $1,530 $10,000 49,659$ Initial Project Scoping Opinion of Probable Construction Cost 24 $6,288 $250 6,538$ Survey18 $4,372 $170 $11,600 16,142$ Geotechnical Investigation Assistance 46 $11,748 $470 $24,000 36,218$ Model Development100 $19,885 $800 20,685$ Conceptual Design Documents/BODR 1,112 $238,906 $9,560 248,466$ Conceptual Design Documents/BODR Opinion of Probable Construction Cost 152 $38,827 $1,550 40,377$ Conceptual Design Documents/BODR Review Meeting 30 $7,546 $3,300 10,846$ Permitting24 $5,112 $200 5,312$ Preliminary Design Documents1,780 $378,500 $15,140 393,640$ Preliminary Design Documents Opinion of Probable Construction Cost 130 $33,079 $1,320 34,399$ Preliminary Design Documents Review Meeting 24 $6,022 $3,240 9,262$ Phase 2 Pricing Development420 $101,600 $4,060 105,660$ MDNR Review/Coordination24 $5,112 $200 5,312$ 0$0$0 -$ 0$0$0 -$ Sub Total5,074 $1,132,176 $66,270 $45,600 $1,244,046Project Subtotals 5,074 $1,132,176 $66,270 $45,600 $1,244,046Project Total$1,244,046ActivityBMcDTotal LaborExpensesTotal CostSub- ConsultantsPrepared by BMcD 12/8/2022Page 1 General Conditions of Contract Between Owner and Design-Builder This document has important legal consequences. Consultation with an attorney is recommended with respect to its completion or modification. Table of Contents Article 1: General Article 2: Design-Builder’s Services and Responsibilities Article 3: Owner’s Services and Responsibilities Article 4: Hazardous Conditions and Differing Site Conditions Article 5: Insurance and Bonds Article 6: Payment Article 7: Indemnification Article 8: Time Article 9: Changes to the Contract Price and Time Article 10: Contract Adjustments and Disputes Article 11: Stop Work and Termination for Cause Article 12: Electronic Data Article 13: Miscellaneous DBIA Document No. 535 Page 1 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) Article 1 General 1.1 Mutual Obligations .1 Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents. 1.2 Basic Definitions .1 Agreement refers to the executed contract between Owner and Design-Builder under DBIA Document No. 545, Progressive Design Build Agreement, as modified by the parties. .2 Not Used. .3 Construction Documents are the documents, consisting of Drawings and Specifications, to be prepared, furnished or assembled by the Design-Builder. .4 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents. .5 Design-Build Team is comprised of the Design-Builder, the Design Consultant, and key Subcontractors identified by the Design-Builder. .6 Design Consultant is a qualified, licensed design professional who may be an employee of Design-Builder, or who is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder, to furnish design services required under the Contract Documents. A Design Sub-Consultant is a qualified, licensed design professional who is not an employee of the Design Consultant, but is retained by the Design Consultant or employed or retained by any one under contract to Design Consultant, to furnish design services required under the Contract Documents. Owner recognizes that Design-Builder is an integrated company with in-house design capabilities and that the function of Design Consultant may, in some instances, be self- performed by Design-Builder. .7 Final Completion is the date on which all Work is complete in accordance with the Contract Documents, including but not limited to, any items identified in the punch list prepared under Section 6.6.1 and the submission of all documents set forth in Section 6.7.2. .8 Force Majeure Events are those events that are beyond the control of both Design- Builder and Owner, including the events of war, terrorism, vandalism, floods, labor disputes, supply chain issues, earthquakes, epidemics, adverse weather conditions not reasonably anticipated, acts or inactions of government, quarantines, pandemics, and other acts of God. .9 General Conditions of Contract refer to these General Conditions of Contract Between Owner and Design-Builder (2010 Edition), as modified by the parties. .10 Phase 2 Contract Price Amendment means the amendment to the Agreement for Phase 2 services comprised of the accepted Proposal as developed by Design-Builder in accordance with Section 2.3 of the Agreement between Owner and Design-Builder. .11 Phase 2 Proposal means that proposal developed by Design-Builder in accordance with Section 2.3 of the Agreement. .12 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to DBIA Document No. 535 Page 2 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements. .13 Legal Requirements are all applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work. .14 Owner’s Project Criteria are developed by or for Owner to describe Owner’s program requirements and objectives for the Project, including use, space, price, time, site and expandability requirem ents, as well as submittal requirements and other requirements governing Design-Builder’s performance of the Work. .15 Site is the land or premises on which the Project is located. .16 Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers and shall not include the Design Consultants retained by the Design-Builder. .17 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and suppliers. .18 Substantial Completion or Substantially Complete means the date on which the Work, or an agreed upon portion of the Work, is sufficiently com plete in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes. .19 Work is comprised of all Design-Builder’s design, construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents. Artic le 2 Design-Builder’s Services and Responsibilities 2.1 General Services .1 Design-Builder’s Representative shall be reasonably available to Owner and shall have the necessary skill and experience required to supervise the Work. Design-Builder’s Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder’s Representative may be replaced only with the mutual agreement of Owner and Design-Builder, unless such person is no longer employed by Design-Builder, which shall not be unreasonably withheld by the Owner. It is understood and accepted that Design-Builder does not plan to have a full-time, on-site Superintendent or Project Manager until am ount of Work on site warrants that level of presence on site. .2 Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work, including whether (i) the Work is proceeding according to schedule, (ii) discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) health and safety issues exist in connection with the Work; (iv) status of the contingency account to the extent provided for in the Agreement; and (v) other items that require resolution so as not to jeopardize Design-Builder’s ability to complete the Work for the Contract Price and within the Contract Time(s). .3 Unless a schedule for the execution of the Work has been attached to the Agreement as DBIA Document No. 535 Page 3 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) an exhibit at the time the Agreement is executed, Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated by Section 2.1.4 hereof, a schedule for the execution of the Work for Owner’s review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner’s review of, and response to, the schedule shall not be construed as relieving Design- Builder of its complete and exclusive control over the means, methods, sequences and techniques for executing the Work. .4 The parties will meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. 2.2 Design Professional Services .1 Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant. 2.3 Standard of Care for Design Professional Services .1 The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project. 2.4 Design Development Services .1 Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim design submissions that Owner may wish to review, which interim design submissions may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. Interim design submissions shall be consistent with the Basis of Design Documents, as the Basis of Design Documents may have been changed through the design process set forth in this Section 2.4.1. On or about the time of the scheduled submissions, Design-Builder and Owner shall meet and confer about the submissions, with Design-Builder identifying during such meetings, among other things, the evolution of the design and any changes to the Basis of Design Documents, or, if applicable, previously submitted design submissions. Changes to the Basis of Design Documents, including those that are deemed minor changes under Section 9.3.1, shall be processed in accordance with Article 9. Minutes of the meetings, including a full listing of all changes, will be maintained by Design-Builder and provided to all attendees for review. Following the design review meeting, Owner shall review and approve the interim design submissions and meeting minutes in a time that is consistent with the turnaround times set forth in Design-Builder’s schedule. .2 Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions, as such submissions may have been modified in a design review meeting and recorded in the meetings minutes. The parties shall have a design review meeting to discuss, and Owner shall DBIA Document No. 535 Page 4 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) review and approve, the Construction Documents in accordance with the procedures set forth in Section 2.4.1 above. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction. .3 Owner’s review and approval of interim design submissions, meeting minutes, and the Construction Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner’s review nor approval of any interim design submissions, meeting minutes, and Construction Documents shall be deemed to transfer any design liability from Design-Builder to Owner. .4 To the extent not prohibited by the Contract Documents or Legal Requirements, Design- Builder may prepare interim design submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work. .5 Upon completion of the Design Developm ent Phase, the Design-Builder shall provide the Owner with drawings, outline specifications and other documents for written acceptance by the Owner. Owner shall provide written approval and / or comments within ten (10) working days of the receipt of the same. 2.5 Legal Requirements .1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements. .2 The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design- Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price. Such effects may include, without limitation, revisions Design-Builder is required to make to the Construction Documents because of changes in Legal Requirements. 2.6 Government Approvals and Permits .1 Except as identified in the Permit List attached as an exhibit to the Agreement as Design- Builder’s responsibility, Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi-government entity having jurisdiction over the Project. .2 Design-Builder shall provide reasonable assistance to Owner in obtaining those permits, approvals and licenses that are Owner’s responsibility. 2.7 Design-Builder’s Construction Phase Services .1 Unless otherwise provided in the Contract Documents to be the responsibility of Owner or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents. .2 Design-Builder shall perform all construction activities efficiently and with the requisite experience, skill and competence to satisfy the requirements of the Contract Documents. Design-Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction. .3 Design-Builder shall employ only Subcontractors who are duly licensed (where DBIA Document No. 535 Page 5 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) applicable) and qualified to perform the Work consistent with the Contract Documents. Owner may reasonably object to Design-Builder’s selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts Design-Builder’s cost and/or time of performance. .4 Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any negligent acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party beneficiary rights. .5 Design-Builder shall coordinate the activities of its Subcontractors. If Owner performs other work on the Project or at the Site with separate contractors under Owner’s control, Design- Builder agrees to reasonably cooperate with such separate contractors so that the Project can be completed in an orderly manner without unreasonable disruption. However, unless otherwise stated, Design-Builder is not responsible to schedule or coordinate Owner’s separate contractors. .6 Design-Builder shall keep the Site reasonably free from debris, trash and construction wastes to permit Design-Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, Design-Builder shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project for its intended use. 2.8 Design-Builder’s Responsibility for Project Safety .1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or off- Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work. Unless otherwise required by the Contract Documents, Design-Builder’s Safety Representative shall be an individual stationed at the Site who may have responsibilities on the Project in addition to safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design-Builder’s personnel, Subcontractors and others as applicable. The Safety Representative may be the Design-Builder’s Superintendent or Project Manager. .2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety, as well as any Owner-specific safety requirements set forth in the Contract Documents, provided that such Owner-specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to Owner’s Representative and, to the extent mandated by Legal Requirements, to all government or quasi-government authorities having jurisdiction over safety- related matters involving the Project or the Work. .3 Design-Builder’s responsibility for safety under this Section 2.8 is not intended in any way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injuries, losses, damages or accidents resulting from their performance of the Work. Design-Builder is not responsible for any safety violations, acts or omissions of the Owner or its separate contractors, consultants and their subcontractors. DBIA Document No. 535 Page 6 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) 2.9 Design-Builder’s Warranty .1 For a period of one year following Substantial Completion, Design-Builder warrants to Owner that the construction, including the materials and equipment furnished and procured by Design-Builder as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder’s warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work in a commercially reasonable manner. Nothing in this warranty is intended to duplicate or limit any manufacturer’s warranty which provides Owner with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design-Builder will provide Owner with all manufacturers’ warranties upon Substantial Completion. .2 The Design-Builder agrees to assign to the Owner at the time of Final Completion of the Work manufacturer’s warranties and/or guarantees relating to materials and equipment used in the Work. Owner agrees to look solely to such manufacturer(s) for remedies for defects in equipment and material, and not to Design-Builder. Design-Builder’s sole obligation is to provide reasonable assistance to Owner in obtaining relief under such manufacturer’s warranties. .3 The warranties and remedies provided in this Section 2.9 are in lieu of all other warranties and/or guarantees, express or implied, included but not limited to the implied warranties of merchantability and fitness for a particular purpose. All Design-Builder liability shall end upon expiration of the one-year warranty period, provided that Owner may continue to enforce any claim for which it has given notice prior to that date. Article 3 Owner’s Services and Responsibilities 3.1 Duty to Cooperate .1 Owner shall, throughout the performance of the Work, cooperate with Design-Builder and perform its responsibilities, obligations and services in a timely manner to facilitate Design- Builder’s timely and efficient performance of the Work and so as not to delay or interfere with Design-Builder’s performance of its obligations under the Contract Documents. .2 Owner shall provide timely reviews and approvals of interim design submissions and Construction Documents consistent with the turnaround times set forth in Design-Builder’s schedule. .3 Owner shall give Design-Builder timely notice of any Work that Owner notices to be defective or not in compliance with the Contract Documents. 3.2 Furnishing of Services and Information .1 Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, at its own cost and expense, for Design-Builder’s information and use the following, all of which Design-Builder is entitled to rely upon in performing the Work: .1 Surveys describing the property, boundaries, topography and reference points for use during construction, including existing service and utility lines; .2 Geotechnical studies describing subsurface conditions, and other DBIA Document No. 535 Page 7 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) surveys describing other latent or concealed physical conditions at the Site; .3 Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project and enable Design-Builder to perform the Work; .4 A legal description of the Site; .5 To the extent available, record drawings of any existing structures at the Site; and .6 To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site. .2 Owner is responsible for securing and executing all necessary agreements with adjacent land or property owners that are necessary to enable Design-Builder to perform the Work. Owner is further responsible for all costs, including attorneys’ fees, incurred in securing these necessary agreements. 3.3 Financial Information .1 At Design-Builder’s request, Owner shall promptly furnish reasonable evidence satisfactory to Design-Builder that Owner has adequate funds available and committed to fulfill all of Owner’s contractual obligations under the Contract Documents. If Owner fails to furnish such financial information in a timely manner, Design-Builder may stop Work under Section 11.3 hereof or exercise any other right permitted under the Contract Documents. .2 Design-Builder shall cooperate with the reasonable requirements of Owner’s lenders or other financial sources. Notwithstanding the preceding sentence, after execution of the Agreement Design-Builder shall have no obligation to execute for Owner or Owner’s lenders or other financial sources any documents or agreements that require Design-Builder to assume obligations or responsibilities greater than those existing obligations Design-Builder has under the Contract Docum ents. .3 Any consent to assignment of this Agreement to Owner’s lenders shall be conditioned upon Design-Builder being paid in full for all outstanding sums due at the time of the assignment, and upon the assignee being responsible for all of Owner’s remaining obligations under this Agreement. 3.4 Owner’s Representative .1 Owner’s Representative shall be responsible for providing Owner-supplied information and approvals in a timely manner to permit Design-Builder to fulfill its obligations under the Contract Documents. Owner’s Representative shall also provide Design-Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors, omissions or defects in the performance of the Work. Owner’s Representative shall communicate regularly with Design-Builder and shall be vested with the authority to act on behalf of Owner. 3.5 Government Approvals and Permits .1 Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees set forth in the Permit List attached as an exhibit to the Agreement. .2 Owner shall provide reasonable assistance to Design-Builder in obtaining those permits, DBIA Document No. 535 Page 8 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) approvals and licenses that are Design-Builder’s responsibility. 3.6 Owner’s Separate Contractors .1 Owner is responsible for all work performed on the Project or at the Site by separate contractors under Owner’s control. Owner shall contractually require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, Design-Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents. .2 Owner shall require its separate contractors to name Design-Builder as an additional insured on their general liability and excess/umbrella liability insurance and to waive rights of subrogation against Owner, Design-Builder and its Design Consultant, consistent with Section 5.3.5, below. Article 4 Hazardous Conditions and Differing Site Conditions 4.1 Hazardous Conditions .1 Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal Requirem ents, all government or quasi-government entities with jurisdiction over the Project or Site. .2 Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless. Such necessary measures shall include Owner retaining qualified independent experts and contractors to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that Owner must take either to remove the Hazardous Conditions or render the Hazardous Conditions harmless, (iii) remove, abate and remediate such Hazardous Conditions. Design-Builder is entitled to rely on the information and work of Owner’s separate experts and contractors as being complete and accurate. .3 Design-Builder shall be obligated to resume Work at the affected area of the Project only after Owner’s expert provides it with written certification that (i) the Hazardous Conditions have been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi-government entities having jurisdiction over the Project or Site. .4 Design-Builder will be entitled, in accordance with these General Conditions of Contract, to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions. .5 To the fullest extent permitted by law, Owner shall indemnify, defend and hold harmless Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them, and their officers, directors, employees and agents, from and against any and all claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses, arising out of or resulting from the presence, removal or remediation of Hazardous Conditions at the Site. .6 Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for Hazardous Conditions brought to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. To the fullest extent permitted by law, Design-Builder shall indemnify, defend and hold harmless Owner and Owner’s officers, directors, employees and agents from DBIA Document No. 535 Page 9 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) and against all claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses, arising out of or resulting from those Hazardous Conditions brought to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. .7 Design-Builder and Owner acknowledge and understand that Owner shall retain ownership of and title to any Hazardous Conditions at the Site. The parties agree that such Hazardous Conditions were not caused by and are not the responsibility of Design-Builder; and that Agreement or any documents or exhibits associated with the Agreement, do not attempt to nor do they actually transfer responsibility, liability, or ownership for Hazardous Conditions to Design-Builder. Under no circumstances shall Design-Builder assume ownership of or legal liability for such Hazardous Conditions under any law, rule, order, or regulation pertaining to Hazardous Conditions, or assume the status of generator, transporter, storer, treater, or disposal facility, or arranger of transport, storage, or disposal, for Hazardous Conditions. .8 Design-Builder makes no representation, warranty, or guarantee, express or implied, that the environmental consulting services will result in a complete resolution for Owner of responsibilities and liabilities for contaminants, Hazardous Conditions, and their residuals associated with the site, or that the site will become completely free of all contaminants and Hazardous Conditions or fit for all uses. No warranty shall apply to Design-Builder’s environmental consulting services performed under this Agreement. Design-Builder’s services are based upon the limited scope authorized by Owner. .9 If Design-Builder provides Owner with a written report in connection with the environmental consulting services performed, the report will present such findings and conclusions respecting the site as Design-Builder may reasonably make with the information gathered in accordance with the environmental consulting services. The report shall be based only upon Design-Builder’s environmental consulting services. In preparing the report, Design- Builder may review and interpret certain information provided by third-parties, including government authorities, title companies, testing laboratories, and other entities. Design-Builder will not independently evaluate the accuracy or completeness of such information, and shall not be responsible for any errors or omissions contained in such information. Design-Builder’s services will be performed solely for the benefit of Owner and not for the benefit of any other persons or entities. Nothing contained in the Agreement is intended to benefit anyone other than the parties hereto, nor to create a contractual relationship with, or a cause of action in favor of, a third-party. Design-Builder does not authorize any sharing of any information, report, or other deliverables, instruments of service or work product provided to Owner, with any third-party. If Owner shares with any third-party any information, report, or other deliverable, instrument of service, or work product as result of Design-Builder’s environmental consulting services, Owner does so at its sole risk. Third-parties shall not rely on Design-Builder’s environmental consulting services. Design-Builder assumes no liability for any decision or course of action by any third- party based on information and deliverables and environmental consulting services provided to Owner. Owner shall waive, release, and otherwise indemnify, defend, and hold harmless Design- Builder from any injury, damage, liability, cost, or expense brought by any third-party that arises out or is related to such unauthorized disclosure or sharing of Design-Builder’s deliverables, instruments of service, or work product with any third-party. Certification or verification by Design- Builder of test results or reports constitute a statement of the professional judgment of Design- Builder based on the facts and data known to Design-Builder. Certification, verification, or other confirmation are not guarantees or warranties concerning current or future considerations or performance of the facilities surveyed, or that Owner or others will be entitled to any innocent land Owner or purchaser defenses that may be available under applicable environmental laws including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended. 4.2 Differing Site Conditions .1 Concealed or latent physical conditions or subsurface conditions at the Site that (i) materially differ from the conditions indicated in the Contract Documents or (ii) are of an unusual DBIA Document No. 535 Page 10 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) nature, differing materially from the conditions ordinarily encountered and generally recognized as inherent in the Work are collectively referred to herein as “Differing Site Conditions.” If Design- Builder encounters a Differing Site Condition, Design-Builder will be entitled to an adjustment in the Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance are adversely impacted by the Differing Site Condition. .2 Upon encountering a Differing Site Condition, Design-Builder shall provide prompt written notice to Owner of such condition, which notice shall not be later than fourteen (14) days after such condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide such notice before the Differing Site Condition has been substantially disturbed or altered. Article 5 Insurance and Bonds 5.1 Design-Builder’s Insurance Requirements .1 Design-Builder is responsible for procuring and maintaining the insurance for the coverage amounts all as set forth in the Insurance Exhibit to the Agreement. Coverage shall be secured from insurance companies authorized to do business in the state in which the Project is located, and with a minimum AM Best rating set forth in the Agreement. .2 Design-Builder’s insurance shall specifically delete any design-build or similar exclusions that could compromise coverages because of the design-build delivery of the Project. .3 Prior to commencing any construction services hereunder, Design-Builder shall provide Owner with Acord certificates evidencing that (i) all insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect for the duration required by the Contract Documents and (ii) no insurance coverage will be canceled or renewal refused unless at least thirty (30) days prior written notice is given to Owner. If any of the foregoing insurance coverages are required to remain in force after final payment are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the Final Application for Payment. .4 Design-Builder shall include Owner as an additional insured on the Commercial General Liability, Automobile Liability and Umbrella/Excess Liability required policies. Nothing in this Agreement shall require the Design-Builder or its Design Consultants to name the Owner or others as additional insureds on any Professional Liability, Employer’s Liability, or W orkers Compensation policies. 5.2 Owner’s Liability Insurance .1 Owner shall procure and maintain from insurance companies authorized to do business in the state in which the Project is located such liability insurance as required of Design-Builder in the Agreement, except Builder’s Risk, to protect Owner from claims which may arise from the performance of Owner’s obligations under the Contract Documents or Owner’s conduct during the course of the Project. 5.3 Owner’s Property Insurance .1 Owner shall procure and maintain from insurance companies authorized to do business in the state in which the Project is located property insurance for the existing property at the Project and for the Work upon Substantial Completion, to the full insurable value of the property or Work, including professional fees, overtime premiums and all other expenses incurred to DBIA Document No. 535 Page 11 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) replace or repair the insured property. The property insurance obtained by Owner shall be the broadest coverage commercially available, and shall include as additional insureds the interests of Owner, Design-Builder, Design Consultants and Subcontractors of any tier. Such insurance shall include but not be limited to the perils of fire and extended coverage, theft, vandalism, malicious mischief, collapse, flood, earthquake, windstorm, debris removal and other perils or causes of loss as called for in the Contract Documents. The property insurance shall include physical loss or damage to the existing property at the Project and the Work (upon Substantial Completion), including materials and equipment in transit, and at the Site. The Owner is responsible for the payment of any deductibles under the insurance required by this Section 5.3.1 .2 Prior to Design-Builder commencing any Work, Owner shall provide Design-Builder with certificates evidencing that (i) all Owner’s insurance obligations required by the Contract Documents are in full force and in effect and (ii) no insurance coverage will be canceled or renewal refused unless at least thirty (30) days prior written notice is given to Design-Builder. .3 Owner and Design-Builder waive against each other and Owner’s separate contractors, Design Consultants, Subcontractors, agents and employees of each and all of them, all damages covered by property insurance provided herein or that could be covered by property insurance, if self-insured, including deductibles, and including rights of subrogation, except such rights as they may have to the proceeds of such insurance. Design-Builder and Owner shall, where appropriate, require similar waivers of subrogation from Owner’s separate contractors, Design Consultants and Subcontractors and shall require each of them to include similar waivers in their contracts. These waivers of subrogation shall not contain any restriction or limitation that will impair the full and complete extent of its applicability to any person or entity unless agreed to in writing prior to the execution of this Agreement. 5.4 Bonds and Other Performance Security .1 Owner requires Design-Builder to obtain performance and payment bonds. .2 All bonds furnished by Design-Builder shall be on the Design-Builder’s form. The surety shall be a company qualified and registered to conduct business in the state in which the Project is located. Article 6 Payment 6.1 Schedule of Values .1 Unless required by the Owner upon execution of this Agreement, within ten (10) days of execution of the Agreement, Design-Builder shall submit for Owner’s review and approval a schedule of values for all of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts, (ii) include values for all items comprising the Work and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the Work. .2 The Owner will timely revie w and approve the schedule of values so as not to delay the submission of the Design-Builder’s first application for payment. The Owner and Design-Builder shall timely resolve any differences so as not to delay the Design-Builder’s submission of its first application for payment. 6.2 Monthly Progress Payments .1 On or before the date established in the Agreement, Design-Builder shall submit for Owner’s review and approval its Application for Payment requesting payment for all Work DBIA Document No. 535 Page 12 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) performed as of the date of the Application for Payment. The Application for Payment shall be accompanied by all supporting documentation required by the Contract Documents and/or established at the meeting required by Section 2.1.4 hereof. .2 The Application for Payment may request payment for equipment and materials not yet incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials are suitably stored at either the Site or another acceptable location, (ii) the equipment and materials are protected by suitable insurance and (iii) upon payment, Owner will receive the equipment and materials free and clear of all liens and encumbrances. .3 All discounts offered by Subcontractor, Sub-Subcontractors and suppliers to Design- Builder for early payment shall accrue one hundred percent to Design-Builder to the extent Design-Builder advances payment. Unless Owner advances payment to Design-Builder specifically to receive the discount, Design-Builder may include in its Application for Payment the full undiscounted cost of the item for which payment is sought. .4 The Application for Payment shall constitute Design-Builder’s representation that the Work described herein has been performed consistent with the Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security interests upon Design- Builder’s receipt of payment. 6.3 Withholding of Payments .1 On or before the date established in the Agreement, Owner shall pay Design-Builder all amounts properly due. If Owner determines that Design-Builder is not entitled to all or part of an Application for Payment as a result of Design-Builder’s failure to meet its obligations hereunder, it will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice shall indicate the specific amounts Owner intends to withhold, the reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectify Owner’s concerns. Design-Builder and Owner will attempt to resolve Owner’s concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract Documents, including those under Article 10 hereof. .2 Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay Design-Builder all undisputed amounts in an Application for Payment within the times required by the Agreement. 6.4 Right to Stop Work and Interest .1 If Owner fails to pay timely Design-Builder any amount that becomes due, Design- Builder, in addition to all other remedies provided in the Contract Documents, may stop Work pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate set forth in the Agreement. 6.5 Design-Builder’s Payment Obligations .1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its contractual obligations to such parties, all the amounts Design-Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Design Consultants and Subcontractors to pay those parties with whom they have contracted. Provided Owner makes all payments to Design-Builder when due, Design-Builder will indemnify and defend Owner against any claims for payment and mechanic’s liens as set forth in Section 7.3 hereof. 6.6 Substantial Completion .1 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in DBIA Document No. 535 Page 13 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) the Contract Documents, a portion of the Work, is Substantially Complete. Within five (5) days of Owner’s receipt of Design-Builder’s notice, Owner and Design-Builder will jointly inspect such Work to verify that it is Substantially Complete in accordance with the requirements of the Contract Documents. The Owner and Design-Builder shall prepare a written list (Punch List) of all incomplete items of Work existing at the time, including any deficiencies noted. If such Work is Substantially Complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or portion thereof, (ii) the remaining items of Work that have to be completed before final payment, (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner’s and Design- Builder’s responsibility for the Project’s security, maintenance, utilities and insurance pending final payment, and (iv) an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. .2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion. .3 Owner, at its option, may use a portion of the Work which has been determined to be Substantially Complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section 6.6.1 above, (ii) Design-Builder and Owner have obtained the consent of their sureties and insurers, and to the extent applicable, the appropriate government authorities having jurisdiction over the Project, and (iii) Owner and Design-Builder agree that Owner’s use or occupancy will not interfere with Design-Builder’s completion of the remaining Work. .4 If Owner occupies or attempts to use any portion of the Work prior to Substantial Completion, it agrees to it does so at its own risk and shall sign any reasonable release or indemnity agreement required by Design-Builder as a condition of such use or occupancy. 6.7 Final Payment .1 After receipt of a Final Application for Payment from Design-Builder, Owner shall make final payment by the time required in the Agreement, provided that Design-Builder has achieved Final Completion. .2 At the time of submission of its Final Application for Payment, Design-Builder shall provide the following information: .1 an affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner’s interests, or that any existing liens have been bonded by Design-Builder; .2 a general release executed by Design-Builder waiving, upon receipt and bank clearance of final payment by Design-Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment; .3 consent of Design-Builder’s surety, if any, to final payment; .4 all operating manuals, warranties and other deliverables required by the Contract Documents; and .5 certificates of insurance confirming that required coverages will remain in DBIA Document No. 535 Page 14 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) effect consistent with the requirements of the Contract Documents. .3 Upon making final payment, Owner waives all claims against Design-Builder except claims relating to (i) Design-Builder’s failure to satisfy its payment obligations, if such failure affects Owner’s interests, (ii) Design-Builder’s failure to complete the Work consistent with the Contract Documents, including defects appearing after Substantial Completion and (iii) the terms of any special warranties required by the Contract Documents. .4 Deficiencies in the Work discovered after Substantial Completion, whether or not such deficiencies would have been included on the Punch List if discovered earlier, shall be deemed warranty Work. Such deficiencies shall be corrected by Design-Builder under Sections 2.9 and 2.10 herein, and shall not be a reason to withhold final payment from Design Builder, provided, however, that Owner shall be entitled to withhold from the Final Payment the reasonable value of completion of such deficient work until such work is completed. Article 7 Indemnification 7.1 Patent and Copyright Infringement .1 Design-Builder shall defend any action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or the operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner shall give prompt written notice to Design-Builder of any such action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design-Builder shall indemnify and hold harmless Owner from and against all damages and costs, including but not limited to attorneys’ fees and expenses awarded against Owner or Design-Builder in any such action or proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of such actions. .2 If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result of any patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole expense take reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so procure such right within a reasonable time, Design-Builder shall prom ptly, at Design- Builder’s option and at Design-Builder’s expense, (i) modify the Work so as to avoid infringement of any such patent or copyright or (ii) replace said Work with Work that does not infringe or violate any such patent or copyright. .3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based on infringement or violation of a patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by Owner and not offered or recommended by Design-Builder to Owner or (ii) arising from modifications to the Work by Owner or its agents after acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the preceding sentence, Owner shall defend, indemnify and hold harmless Design-Builder to the same extent Design-Builder is obligated to defend, indemnify and hold harmless Owner in Section 7.1.1 above. .4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between the parties relating to liability for infringement of violation of any patent or copyright. 7.2 Tax Claim Indemnification .1 If, in accordance with Owner’s direction, an exemption for all or part of the Work is claimed for taxes, Owner shall indemnify, defend and hold harmless Design-Builder from and DBIA Document No. 535 Page 15 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) against any liability, penalty, interest, fine, tax assessment, attorneys’ fees or other expenses or costs incurred by Design-Builder as a result of any action taken by Design-Builder in accordance with Owner’s directive. Owner shall furnish Design-Builder with any applicable tax exemption certificates necessary to obtain such exemption, upon which Design-Builder may rely. 7.3 Payment Claim Indemnification .1 Providing that Owner is not in breach of its contractual obligation to make payments to Design-Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic’s liens brought against Owner or against the Project as a result of the failure of Design-Builder, or those for whose acts it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within three (3) days of receiving written notice from Owner that such a claim or mechanic’s lien has been filed, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic’s lien bond or Owner’s indemnity bond. If Design-Builder fails to do so within thirty (30) days after receipt of written notice from Owner to do so, Owner will have the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses incurred, including attorneys’ fees. However, in the event that a lien is a result of disputed sums, the Owner shall give the Design- Builder reasonable time and opportunity to negotiate settlement with its Subcontractor prior to the Owner taking steps to discharge the lien directly. 7.4 Design-Builder’s General Indemnification .1 Subject to Section 10.5 and any limitations in the Agreement, Design-Builder, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Owner, its officers, directors, and employees from and against losses, damages, and expenses, including reasonable attorneys’ fees and expenses, for bodily injury, sickness or death, and property damage or destruction (other than to the W ork itself) to the extent resulting from the negligent acts or omissions of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable. .2 If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable has a claim against Owner, its officers, directors, employees, or agents, Design-Builder’s indemnity obligation set forth in Section 7.4.1 above shall not be limited by any limitation on the amount of damages, compensation or benefits payable by or for Design-Builder, Design Consultants, Subcontractors, or other entity under any employee benefit acts, including workers’ compensation or disability acts. 7.5 Owner’s General Indemnification .1 In addition to other specific indemnities elsewhere in this Agreement, Owner, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Design-Builder and any of Design-Builder’s officers, directors, and employees, from and against losses, damages, and expenses including reasonable attorneys’ fees and expenses, for bodily injury, sickness or death, and property damage or destruction (other than to the Work itself) to the extent resulting from the negligent acts or omissions of Owner’s separate contractors or anyone for whose acts any of them may be liable. .2 If an employee of Owner or its separate contractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable has a claim against Design-Builder, its officers, directors, employees, or agents, Owner’s indemnity obligation set forth in Section 7.5.1 above shall not be limited by any limitation on the amount of damages, compensation or benefits payable by or for Owner, Owner’s separate contractors, or other entity under any employee benefit acts, including workers’ compensation or disability acts. DBIA Document No. 535 Page 16 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) Article 8 Time 8.1 Obligation to Achieve the Contract Times .1 Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s) in accordance with Article 5 of the Agreement. 8.2 Delays to the Work .1 If Design-Builder is delayed in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or those for whom Design-Builder is responsible, the Contract Time(s) for performance shall be reasonably extended by Change Order. By way of example, events that will entitle Design-Builder to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under Owner’s control (including separate contractors), changes in the Work, Differing Site Conditions, Hazardous Conditions, and Force Majeure Events. .2 In addition to Design-Builder’s right to a time extension for those events set forth in Section 8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price. .3 For purposes of this Article 8, Force Majeure Events include not only adverse weather conditions, but the resulting impact on the Project after such weather condition ceases, such as mud, standing water, frozen soil or weather damage due to hail, high wind or other weather event. Article 9 Changes to the Contract Price and Time 9.1 Change Orders .1 A Change Order is a written instrument issued after execution of the Agreement signed by Owner and Design-Builder, stating their agreement upon all of the following: .1 The scope of the change in the Work; .2 The amount of the adjustment to the Contract Price; and .3 The extent of the adjustment to the Contract Time(s). .2 All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes. .3 If Owner requests a proposal for a change in the Work from Design-Builder and subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse Design-Builder for reasonable costs incurred for estimating services, design services and services involved in the preparation of proposed revisions to the Contract Documents. DBIA Document No. 535 Page 17 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) 9.2 Work Change Directives .1 A Work Change Directive is a written order prepared and signed by Owner, directing a change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract Time(s). .2 Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement. 9.3 Minor Changes in the Work .1 Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however that Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Design-Builder. 9.4 Contract Price Adjustments .1 The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods: .1 Unit prices set forth in the Agreement or as subsequently agreed to between the parties; .2 A mutually accepted, lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner; .3 Costs, fees and any other markups set forth in the Agreement; and .4 If an increase or decrease cannot be agreed to as set forth in items .1 through .3 above and Owner issues a Work Change Directive, the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change, including a reasonable overhead and profit, as may be set forth in the Agreem ent. .2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit prices will cause substantial inequity to Owner or Design- Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted. .3 If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed changes to the Work, Owner and Design-Builder shall resolve the disagreement pursuant to Article 10 hereof. As part of the negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner’s interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the services in accordance with Owner’s interpretations, Design- Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design-Builder (i) directing Design-Builder to proceed and (ii) specifying Owner’s interpretation of the services that are to be performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the express understanding that (i) such payment by Owner does not prejudice DBIA Document No. 535 Page 18 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) Owner’s right to argue that it has no responsibility to pay for such services and (ii) receipt of such payment by Design-Builder does not prejudice Design-Builder’s right to seek full payment of the disputed services if Owner’s order is deemed to be a change to the Work. 9.5 Emergencies .1 In any emergency affecting the safety of persons and/or property, Design-Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price and/or Contract Time(s) on account of emergency work shall be determined as provided in this Article 9. Ar ticle 10 Contract Adjustments and Disputes 10.1 Requests for Contract Adjustments and Relief .1 If either Design-Builder or Owner believes that it is entitled to relief against the other for any event arising out of or related to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring any cost or expense and in accordance with any specific notice requirements contained in applicable sections of these General Conditions of Contract. In the absence of any specific notice requirement, written notice shall be given within a reasonable time, not to exceed twenty- one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later. Such notice shall include sufficient information to advise the other party of the circumstances giving rise to the claim for relief, the specific contractual adjustment or relief requested and the basis of such request. 10.2 Dispute Avoidance and Resolution .1 The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Design-Builder and Owner each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work. .2 Design-Builder and Owner will first attempt to resolve disputes or disagreements at the field level through discussions between Design-Builder’s Representative and Owner’s Representative which shall conclude within fourteen (14) days of the written notice provided for in Section 10.1.1 unless the Owner and Design-Builder mutually agree otherwise. .3 If a dispute or disagreement cannot be resolved through Design-Builder’s Representative and Owner’s Representative, Design-Builder’s Senior Representative and Owner’s Senior Representative, upon the request of either party, shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute or disagreement. Five (5) days prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement. .4 If after meeting the Senior Representatives determine that the dispute or disagreement cannot be resolved on terms satisfactory to both parties, the parties shall submit within thirty (30) days of the conclusion of the meeting of Senior Representatives the dispute or disagreement to non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the parties. The mediation DBIA Document No. 535 Page 19 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) will be governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot so agree, by procedures established by the mediator. Unless otherwise mutually agreed by the Owner and Design-Builder and consistent with the mediator’s schedule, the mediation shall commence within ninety (90) days of the submission of the dispute to mediation. .5 In the event that a dispute arises between the parties is submitted to mediation under this Section, the parties agree to split the mediator's and any filing fees equally. The mediation shall be held in Kansas City, Missouri. In the event that it is necessary to file a lawsuit or demand arbitration in order to meet the requirements of a statute of limitations which is about to expire, the parties agree, nonetheless, to submit the dispute to mediation within thirty (30) days after the filing of such lawsuit or demand. Any agreements reached in mediation shall be enforceable as a settlement agreement. 10.3 Arbitration .1 Any claims, disputes or controversies between the parties arising out of or relating to the Agreement, or the breach thereof, which have not been resolved in accordance with the procedures set forth in Section 10.2 above shall be decided by arbitration. The number of arbitrators shall be one (1) and the place of the arbitration shall be Kansas City, Missouri, unless the parties agree otherwise in writing. .2 The award of the arbitrator(s) shall be final and binding upon the parties without the right of appeal to the courts. Judgment may be entered upon it in accordance with applicable law by any court having jurisdiction thereof. .3 Design-Builder and Owner expressly agree that any arbitration pursuant to this Section 10.3 may be joined or consolidated with any arbitration involving any other person or entity (i) necessary to resolve the claim, dispute or controversy, or (ii) substantially involved in or affected by such claim, dispute or controversy. Both Design-Builder and Owner will include appropriate provisions in all contracts they execute with other parties in connection with the Project to require such joinder or consolidation. .4 The prevailing party in any arbitration, or any other final, binding dispute proceeding upon which the parties may agree, shall be entitled to recover from the other party reasonable attorneys’ fees and expenses incurred by the prevailing party. A “prevailing party” is one who wins more than 75% of what it claimed was owed, or one who defends more than 75% of the opposing party’s claim. 10.4 Duty to Continue Performance .1 Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to perform the Work and Owner shall continue to satisfy its payment obligations to Design- Builder, pending the final resolution of any dispute or disagreement between Design-Builder and Owner. 10.5 CONSEQUENTIAL DAMAGES .1 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET FORTH IN SECTION 10.5.2 BELOW), NEITHER DESIGN-BUILDER NOR OWNER SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, ANTICIPATED PROFITS, PRODUCTION, BUSINESS, REPUTATION OR FINANCING, RETURN ON INVESTMENT, OR INCREASED COST OF OPERATION,. DBIA Document No. 535 Page 20 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) .2 The consequential damages limitation set forth in Section 10.5.1 above is not intended to affect the payment of liquidated dam ages or lost early completion bonus, if any, set forth in Article 5 of the Agreement, which both parties recognize has been established, in part, to reimburse Owner or reward Design-Builder for some damages that might otherwise be deemed to be consequential. Article 11 Stop Work and Termination for Cause 11.1 Owner’s Right to Stop Work .1 Owner may, without cause and for its convenience, order Design-Builder in writing to stop and suspend the Work. Such suspension shall not exceed sixty (60) consecutive days or aggregate more than ninety (90) days during the duration of the Project. .2 Design-Builder is entitled to seek an adjustment of the Contract Price and/or Contract Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension of stoppage of the Work by Owner. 11.2 Owner’s Right to Perform and Terminate for Cause .1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers, (ii) supply the materials required by the Contract Documents, (iii) comply with applicable Legal Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v) prosecute the Work with promptness and diligence to ensure that the Work is completed by the Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract Documents, then Owner, in addition to any other rights and remedies provided in the Contract Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below. .2 Upon the occurrence of an event set forth in Section 11.2.1 above, Owner may provide written notice to Design-Builder that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Design-Builder’s receipt of such notice. If Design-Builder fails to cure, or reasonably commence to cure, such problem, then Owner may give a second written notice to Design-Builder of its intent to terminate within an additional seven (7) day period. If Design-Builder, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Owner may declare the Agreement terminated for default by providing written notice to Design-Builder of such declaration. .3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, Owner may enter upon the premises and take possession, for the purpose of completing the Work, of all materials, equipment, scaffolds, tools, appliances and other items thereon, which have been purchased for the Work, which are planned to be turned-over as part of the Work or planned for consumption of the Work, all of which Design-Builder hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to complete the Work and provide all of the required labor, services, materials, equipment and other items. In the event of such termination, Design-Builder shall not be entitled to receive any further payments under the Contract Documents until the Work shall be finally completed in accordance with the Contract Documents. At such time, if the unpaid balance of the Contract Price exceeds the cost and expense incurred by Owner in completing the Work, such excess shall be paid by Owner to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work perform ed prior to its default. If Owner’s cost and expense of completing the Work exceeds the unpaid balance of the Contract Price, then Design-Builder shall be obligated to pay the difference to DBIA Document No. 535 Page 21 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) Owner. Such costs and expense shall include not only the cost of completing the Work, but also losses, damages, costs and expense, including attorneys’ fees and expenses, incurred by Owner in connection with the reprocurement and defense of claims arising from Design-Builder’s default, subject to the waiver of consequential damages set forth in Section 10.5 hereof. .4 If Owner improperly terminates the Agreement for cause, the termination for cause will be converted to a termination for convenience in accordance with the provisions of Article 8 of the Agreement. .5 Design-Builder shall not be liable for the Work (including, but not limited to, equipment installation) that is incomplete due to a termination by Owner for cause or for convenience under this Agreement, including without limitation, any errors, omissions or defects in such designs or Work which Design-Builder is prevented from correcting and completing due to any termination. .6 Owner shall pay Design-Builder as a Cost of the Work to make reasonably safe any incomplete Work or Site conditions left open due to any termination under this Agreement. Thereafter, Owner assumes full risk and control of the Site. 11.3 Design-Builder’s Right to Stop Work .1 Design-Builder may, in addition to any other rights afforded under the Contract Documents or at law, stop the Work for the following reasons: .1 Owner’s failure to provide financial assurances as required under Section 3.3 hereof; or .2 Owner’s failure to pay amounts properly due under Design-Builder’s Application for Payment. .2 Should any of the events set forth in Section 11.3.1 above occur, Design-Builder has the right to provide Owner with written notice that Design-Builder will stop the Work unless said event is cured within seven (7) days from Owner’s receipt of Design-Builder’s notice. If Owner does not cure the problem within such seven (7) day period, Design-Builder may stop the Work. In such case, Design-Builder shall be entitled to make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been adversely impacted by such stoppage. 11.4 Design-Builder’s Right to Terminate for Cause .1 Design-Builder, in addition to any other rights and remedies provided in the Contract Documents or by law, may terminate the Agreement for cause for the following reasons: .1 The Work has been stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, because of court order, any government authority having jurisdiction over the Work, or orders by Owner under Section 11.1.1 hereof, provided that such stoppages are not due to the acts or omissions of Design-Builder or anyone for whose acts Design-Builder may be responsible. .2 Owner’s failure to provide Design-Builder with any information, permits or approvals that are Owner’s responsibility under the Contract Documents which result in the Work being stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, even though Owner has not ordered Design-Builder in writing to stop and suspend the Work pursuant to Section 11.1.1 hereof. .3 Owner’s failure to cure the problems set forth in Section 11.3.1 above DBIA Document No. 535 Page 22 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) after Design-Builder has stopped the W ork. .2 Upon the occurrence of an event set forth in Section 11.4.1 above, Design-Builder may provide written notice to Owner that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Owner’s receipt of such notice. If Owner fails to cure, or reasonably commence to cure, such problem, then Design- Builder may give a second written notice to Owner of its intent to terminate within an additional seven (7) day period. If Owner, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Design-Builder may declare the Agreement terminated for default by providing written notice to Owner of such declaration. In such case, Design-Builder shall be entitled to recover in the same manner as if Owner had terminated the Agreement for its convenience under Article 8 of the Agreement. 11.5 Bankruptcy of Owner or Design-Builder .1 If either Owner or Design-Builder institutes or has instituted against it a case under the United States Bankruptcy Code (such party being referred to as the “Bankrupt Party”), such event may impair or frustrate the Bankrupt Party’s ability to perform its obligations under the Contract Documents. Accordingly, should such event occur: .1 The Bankrupt Party, its trustee or other successor, shall furnish, upon request of the non-Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to perform all future material obligations under the Contract Documents, which assurances shall be provided within ten (10) days after receiving notice of the request; and .2 The Bankrupt Party shall file an appropriate action within the bankruptcy court to seek assumption or rejection of the Agreement within sixty (60) days of the institution of the bankruptcy filing and shall diligently prosecute such action. If the Bankrupt Party fails to comply with its foregoing obligations, the non- Bankrupt Party shall be entitled to request the bankruptcy court to reject the Agreement, declare the Agreement terminated and pursue any other recourse available to the non-Bankrupt Party under this Article 11. .2 The rights and remedies under Section 11.5.1 above shall not be deemed to limit the ability of the non-Bankrupt Party to seek any other rights and remedies provided by the Contract Documents or by law, including its ability to seek relief from any automatic stays under the United States Bankruptcy Code or the right of Design-Builder to stop Work under any applicable provision of these General Conditions of Contract. Article 12 Electronic Data 12.1 Electronic Data. The parties recognize that Contract Documents, including drawings, specifications and three-dimensional modeling (such as Building Information Models) and other Work Product may be transmitted among Owner, Design-Builder and others in electronic media as an alternative to paper hard copies (collectively “Electronic Data”). 12.2 Transmission of Electronic Data .1 Owner and Design-Builder shall agree upon the software and the format for the DBIA Document No. 535 Page 23 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) transmission of Electronic Data. Each party shall be responsible for securing the legal rights to access the agreed-upon format, including, if necessary, obtaining appropriately licensed copies of the applicable software or electronic program to display, interpret and/or generate the Electronic Data. .2 Neither party makes any representations or warranties to the other with respect to the functionality of the software or computer program associated with the electronic transmission of Work Product. Unless specifically set forth in the Agreement, ownership of the Electronic Data does not include ownership of the software or computer program with which it is associated, transmitted, generated or interpreted. .3 By transmitting Work Product in electronic form, the transmitting party does not transfer or assign its rights in the Work Product. The rights in the Electronic Data shall be as set forth in Article 4 of the Agreement. Under no circumstances shall the transfer of ownership of Electronic Data be deemed to be a sale by the transmitting party of tangible goods. 12.3 Electronic Data Protocol .1 The parties acknowledge that Electronic Data may be altered or corrupted, intentionally or otherwise, due to occurrences beyond their reasonable control or knowledge, including but not limited to compatibility issues with user software, manipulation by the recipient, errors in transcription or transmission, machine error, environmental factors, and operator error. Consequently, the parties understand that there is some level of increased risk in the use of Electronic Data for the communication of design and construction information and, in consideration of this, agree, and shall require their independent contractors, Subcontractors and Design Consultants to agree, to the following protocols, terms and conditions set forth in this Section 12.3. .2 Electronic Data will be transmitted in the format agreed upon in Section 12.2.1 above, including file conventions and document properties, unless prior arrangements are made in advance in writing. .3 The Electronic Data represents the information at a particular point in time and is subject to change. Therefore, the parties shall agree upon protocols for notification by the author to the recipient of any changes which may thereafter be made to the Electronic Data, which protocol shall also address the duty, if any, to update such information, data or other information contained in the electronic media if such information changes prior to Final Completion of the Project. .4 The transmitting party specifically disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with respect to the media transmitting the Electronic Data. However, transmission of the Electronic Data via electronic means shall not invalidate or negate any duties pursuant to the applicable standard of care with respect to the creation of the Electronic Data, unless such data is materially changed or altered after it is transmitted to the receiving party, and the transmitting party did not participate in such change or alteration. Article 13 Miscellaneous 13.1 Confidential Information .1 Confidential Information is defined as information which is determined by the transmitting party to be of a confidential or proprietary nature and: (i) the transmitting party identifies as either confidential or proprietary; (ii) the transmitting party takes steps to maintain the confidential or proprietary nature of the information; and (iii) the document is not otherwise available in or DBIA Document No. 535 Page 24 Standard Form of General Conditions of Contract Between Owner and Design-Builder Rev 10_20_2010 © 2010 Design-Build Institute of America DB-15 (DBIA 535-2010) considered to be in the public domain. The receiving party agrees to maintain the confidentiality of the Confidential Information and agrees to use the Confidential Information solely in connection with the Project. 13.2 Assignment .1 Neither Design-Builder nor Owner shall, without the written consent of the other assign, transfer or sublet any portion or part of the Work or the obligations required by the Contract Documents. 13.3 Successorship .1 Design-Builder and Owner intend that the provisions of the Contract Documents are binding upon the parties, their employees, agents, heirs, successors and assigns. 13.4 Governing Law .1 The Agreement and all Contract Documents shall be governed by the laws of the place of the Project, without giving effect to its conflict of law principles. Arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. sec. 1, et seq. 13.5 Severability .1 If any provision or any part of a provision of the Contract Documents shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any applicable Legal Requirements, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of the Contract Documents, which shall remain in full force and effect as if the unenforceable provision or part were deleted. 13.6 No Waiver .1 The failure of either Design-Builder or Owner to insist, in any one or more instances, on the performance of any of the obligations required by the other under the Contract Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance. 13.7 Headings .1 The headings used in these General Conditions of Contract, or any other Contract Document, are for ease of reference only and shall not in any way be construed to limit or alter the meaning of any provision. 13.8 Notice .1 Whenever the Contract Documents require that notice be provided to the other party, notice will be deemed to have been validly given (i) if delivered in person to the individual intended to receive such notice, (ii) four (4) days after being sent by registered or certified mail, postage prepaid to the address indicated in the Agreement, (iii) if transmitted by facsimile, by the time stated in a machine generated confirmation that notice was received at the facsimile number of the intended recipient, or (iv) if transmitted by email with receipt confirmation received by the transmitting party, by the time stated in the receipt confirmation. 13.9 Amendments .1 The Contract Documents may not be changed, altered, or amended in any way except in writing signed by a duly authorized representative of each party. Updated July 8, 2022 Page 1 of 5 Clean Water State Revolving Fund Specifications Requirements State Revolving Fund: The Missouri State Revolving Fund, established by the sale of Missouri Water Pollution Control bonds and federal Capitalization Grants to Missouri, is financing this project. Equal Employment Opportunity and Nondiscrimination in Employment – 41 CFR 60-4; E.O. 11246: 41 CFR 60-4 published April 7, 1978 and amended October 3, 1980, requires that the SRF funding applicant and selected bidders comply with Executive Order 11246 for bids, contracts, and subcontracts for all federally assisted construction contracts exceeding $10,000. The specifications explain the requirements for bidders and contractors under E.O. 11246. •Bidders please see document titled “Standard Federal Equal Employment Opportunity Construction Contract Specifications (Executive Order 11246)” Disadvantaged Business Enterprises (DBE) (includes Minority-owned Business Enterprises/Women-owned Business Enterprises, MBE/WBE) – 40 CRF Part 33, 10 CSR 20-4.040(17), E.O. 11625 and 12138: The applicant is an Equal Opportunity Employer and invites the submission of bids from Disadvantaged Business Enterprises. •Bidders please see document titled “Missouri State Revolving Fund Procedures for Implementation Minority Business Enterprise/Women’s Business Enterprise” •Bidders please see Missouri Executive Order 05-30 •Bidders please see Missouri Executive Order 15-06 The selected bidders must complete the “Missouri State Revolving Fund Disadvantaged Business Enterprise (Minority and Women’s Business Enterprise) Utilization Worksheet” Employment of Unauthorized Aliens Prohibited – §285.530 RSMo: Pursuant to §285.530.1, RSMo, the contractor assures that it, as well as its subcontractors, does not knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Missouri, and shall affirm, by sworn affidavit and provision of documentation, its enrollment and participation in a federal work authorization program with respect to the employees working in connection with the contracted services. Further, the contractor assures that it, as well as its subcontractor shall sign an affidavit affirming that it does not knowingly employ any person who is an unauthorized alien in connection with the contracted services. In accordance with §285.525 to 285.550, RSMo a general contractor or subcontractor of any tier shall not be liable when such contractor or subcontractor contracts with its direct subcontractor who violates subsection 1 of §285.530, RSMo if the contract binding the contractor and subcontractor affirmatively states that the direct subcontractor is not knowingly in violation of subsection 1 of §285.530, RSMo and shall not henceforth be in such violation and the contractor or subcontractor receives a sworn affidavit under the penalty of perjury attesting to the fact that the direct subcontractor’s employees are lawfully present in the United States. The selected contractor(s) must complete the “Business Entity Certification, Enrollment Documentation, and Affidavit of Work Authorization” form. In addition, the selected contractor(s) must enroll in the federal E-verify system, provide supporting documentation of enrollment, and provide verification documentation for enrollment in the Federal E- Verify system. Davis-Bacon Act: •Bidders please see “Davis Bacon Act Requirements” •Bidders please see “Davis-Bacon Act Requirements Funding Recipient Requirements” Contract Work Hours and Safety Standards Act – 40 U.S.C. 327-330: The contractor(s) and subcontractor(s) shall comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327–330) as supplemented by Department of Labor regulations (29 CFR part 5). U.S. Environmental Protection Agency Certification of Non-segregated Facilities: The selected bidders must complete this form. OSHA Training – §292.675, RSMo: Any person signing a contract to work on the construction of public works for any public body shall provide a ten-hour Occupational Safety and Health Administration (OSHA) construction Clean Water State Revolving Fund Specifications Requirements Updated July 8, 2022 Page 2 of 5 safety program for their on-site employees which includes a course in construction safety and health approved by OSHA or a similar program approved by the Missouri Department of Labor and Industrial Relations which is at least as stringent as an approved OSHA program. All employees are required to complete the program within sixty days of beginning work on such construction project. Debarment and Suspension – 10 CSR 20-4.040(17); E.O. 12549: The Code of Federal Regulations at Title 2, Part 180, prohibits participation in USEPA funded contracts by persons excluded or disqualified from doing business with the federal government. Bidders are responsible for advising the Owner if they are excluded or disqualified, and to check whether subcontractors they intend to use are excluded or disqualified. All tiers of subcontractors have the same responsibility to notify the one for which they are providing services if they are excluded or disqualified, and to check the status of any subcontractors they intend to use. Status can be checked on the System for Award Management (SAM) located on the Internet at https://www.sam.gov/SAM/. All subcontracts at any tier should include this language.  The selected bidders must complete the “Certification Regarding Debarment and Suspension” form. Small Business Act – P.L. 100-590: Prior to awarding contracts, the SRF funding applicant and any contractor awarding subcontracts must take the following affirmative steps in accordance with Section 129 of Public Law 100- 590, Small Business Administration Reauthorization and Amendment Act of 1988: a. Placing Small Business in Rural Areas (SBRA) on solicitation lists; b. Ensuring that SBRAs are solicited whenever they are potential sources; c. Dividing total requirements, when economically feasible, into small tasks or quantities to permit maximum participation by SBRAs; d. Establishing delivery schedules, where the requirements of work will permit which would encourage participation by SBRAs; and e. Utilizing the services of the Small Business Administration and the Minority Business Development Agency of the U.S. Department of Commerce, as appropriate. Award of Contract – 10 CSR 20-4.040(18): The applicant will award the contract to the lowest responsive, responsible bidder. The contract must be for a firm fixed-price. The contract award will be awarded only to responsible contractors possessing the ability to perform successfully, which will be determined by considering such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. Central Contractor Registration: In accordance with the Federal Funding Accountability Act of 2006, the contractor assures that it, as well as its subcontractor(s), shall register in the the System for Award Management (SAM). SAM is the Official U.S. Government system that consolidated the capabilities of Central Contractor Registration (CCR)/FedReg, Online Representations and Certifications Application (ORCA), and Excluded Parties List System (EPLS). There is NO fee to register for this site. If you had an active record in CCR, you have an active record in SAM. You do not need to do anything in SAM at this time, unless a change in your business circumstances requires updates to your Entity record(s) in order for you to be paid or receive an award, or you need to renew your Entity(s) prior to its expiration. To update or renew your Entity records(s) in SAM, you will need to create a SAM User Account located on the Internet at https://www.sam.gov and link it to your migrated Entity records. You will need a user account to search for registered entities in SAM. If the prime contractor is not currently registered in SAM, they are required to do so, as their status will be checked in SAM using the Unique Entity Identifier (UEI) provided by SAM. Privity of Contract: The Missouri Department of Natural Resources, its divisions, nor its employees are or will be a party to the contract(s) at any tier. Protests: Neither the U.S. Environmental Protection Agency (USEPA) nor the Missouri Department of Natural Resources will be involved in protest(s) and their resolution. Clean Water State Revolving Fund Specifications Requirements Updated July 8, 2022 Page 3 of 5 Domestic Products Procurement Law – 10 CSR 20-4.040(17); §§34.350 - 34.359 RSMo: All manufactured goods or commodities used or supplied in the performance of any contract or subcontract awarded on this project shall be manufactured, assembled or produced in the United States, unless obtaining American-made products would increase the cost of the contract by more than ten percent (10%). In accordance with §34.350 through 34.359 RSMo, a waiver may be requested from the owner. The selected bidders must complete the “Domestic Products Procurement Act – §§34.350 - 34.359 RSMo Certification” form. Anti-Lobbying Act – P.L. 101-121: Sub-recipients who request or receive from the grant recipient a sub-grant, contract, or sub-contract exceeding $100,000, at any tier under a federal grant shall comply with the Anti-Lobbying Act, Section 319 of Public Law 101-121, and file an Anti-Lobbying Certification form, and the Disclosure of Lobbying Activities form, if required, to the next tier above. •Selected bidders must complete one of the following forms: o If the selected bidder lobbied on the behalf of this project, the contractor will complete the “Disclosure of Lobbying Activities” form. o If the selected bidder did not lobby on the behalf of this project, the contractor will complete the “Certification Regarding Lobbying” form. Record Retention: The contractor(s) and sub-contractor(s) shall retain all project related records for three years after final payment(s) and all other pending matters are closed. Access to Construction Site and Contract Records – 10 CSR 20-4.040(17); Clean Water Act sec. 308 (B)i: The contractor shall provide access to the project site and project records by, the Missouri State Auditor, the Missouri Department of Natural Resources, the Missouri Clean Water Commission, the Environmental Improvement and Energy Resources Authority, the USEPA, the Comptroller General of the United States, or any of their duly authorized representatives to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. Payment Provisions – 10 CSR 20-4.040(20): The owner shall make payment to the contractor in accordance with §8.960, RSMo. Retainage can be no more than 5%. False Claims Act: The contractor(s) and sub-contractor(s)s, if required by future OMB guidance, shall promptly refer to the State of Missouri or other appropriate Inspector General any credible evidence that a principal, employee, agent, contractor, sub-grantee, subcontractor or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity or similar misconduct involving those funds. Clean Air Act - 42 U.S.C. 7506(C): The contractor(s) and sub-contractor(s) shall comply with the Clean Air Act. Clean Water Act - 33 U.S.C. 1368: The contractor(s) and sub-contractor(s) shall comply with the Clean Water Act. Energy Efficiency Requirements – Energy Policy and Conservation Act (P.L.94-163, 89 Stat. 871): The contractor(s) and sub-contractor(s) shall comply with the mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (P.L. 94-163, 89 Stat. 871). Recycled Materials – U.S.C. 6962 (RCRA Section 6002): In accordance with Section 6002 of the Resource Conservation and Recovery Act (RCRA), preference shall be given to the procurement of specific products containing recycled materials identified in guidelines developed by the USEPA. Current guidelines are contained in 40 CFR Part 247-254. Historical and Archaeological – P.L. 93-291: If during the course of construction evidence of deposits of historical or archaeological interest is found, the contractor shall cease operations affecting the find and shall notify the owner who shall notify the Missouri Department of Natural Resources and the Director, Division of State Parks, P.O. Box 176, Jefferson City, Missouri 65102-0176, Telephone (573) 751-2479. The contractor shall halt any further disturbances of the deposits until notified by the owner that they may proceed. The owner will issue a notice to Clean Water State Revolving Fund Specifications Requirements Updated July 8, 2022 Page 4 of 5 proceed only after the state official has surveyed the find and made a determination to the Missouri Department of Natural Resources and the owner. Compensation to the contractor, if any, for lost time or changes in construction to avoid the find, shall be determined in accordance with changed conditions or change order provisions of the specifications. Missouri Products – Chap. 71.140 RSMo: Preference shall be given to Missouri products in accordance with Chapter 71.140, Revised Statutes of Missouri. •This applies to loan only funded projects. Please contact the solicitor to determine if applicable to this project. Missouri Firms – §34.076 RSMo: Pursuant to §34.076, Revised Statutes of Missouri, preference shall be given to those persons doing business as Missouri firms, corporations, or individuals, or which maintain Missouri offices or places of business, when the quality of performance promised is equal or better and the price quoted is the same or less. In addition, in order for a non-domiciliary Missouri bidder to be successful, his bid must be that same percentage lower than a domiciliary Missouri bidder's bid, as would be required for a Missouri bidder to successfully bid in the non-domiciliary's state. •This applies to loan only funded projects. Please contact the solicitor to determine if applicable to this project. Prohibition on certain telecommunications and video surveillance services or equipment Certification – 2 CFR 200.216: In accordance with 2 CFR 200.216, recipients and sub-recipients are prohibited from obligating or expending loan or grant funds to procure or obtain, extend or renew a contract to procure or obtain, or enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). Anti-Discrimination Against Israel Act – §34.600, RSMo: In compliance with §34.600 RSMo, the contracting company certifies that it is not currently engaged in and shall not, for the duration of the contract, engage in a boycott of goods or services from the State of Israel; companies doing business in or with Israel or authorized by, licensed by, or organized under the laws of the State of Israel; or persons or entities doing business in the State of Israel, in accordance with §34.600, RSMo. Any contract that fails to comply with the provisions of this section shall be void against public policy. •This provision does not apply to contracts with a total potential value of less than one hundred thousand dollars or to contractors with fewer than ten employees. American Iron and Steel – Sec. 608(a) of the Federal Water Pollution Control Act: In accordance with Sec. 608(a) of the Federal Water Pollution Control Act, the Participant assures that it, as well as its contractors and sub- contractors, will only use iron and steel products in the Project which are produced in the United States in a manner consistent with United States obligations under international agreements. The term “iron and steel products” means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. The Participant understands that this requirement may only be waived by the applicable federal agency in limited situations as set out in §608(d) of the Federal Water Pollution Control Act. The contractor shall submit all AIS certifications for any iron and steel requested for reimbursement. No applicable items will be reimbursed without the necessary AIS documentation. Clean Water State Revolving Fund Specifications Requirements Updated July 8, 2022 Page 5 of 5 •Please see AIS guidance titled “Implementation of American Iron and Steel provisions.” •Please see AIS waivers: o De-Minimis Waiver o National Product Waiver for Pig Iron and Direct Reduced Iron for State Revolving Fund Projects o National Product Waiver for Minor Components within Iron and Steel Products (with cost ceiling) for State Revolving Fund Projects •Contractors bidding on this project must complete and include with their bid the “American Iron and Steel Certification” form. STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246) 1. As used in these specifications: a. “Covered area” means the geographical area described in the solicitation from which this contract resulted; b. “Director” means Director, Office of Federal Contract Compliance Programs United States Department of Labor, or any person to whom the Director delegates authority; c. “Employer identification number” means the Federal Social Security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941. d. “Minority” includes: (i) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish Culture or origin, regardless of race); (iii) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (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 a portion 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 female participation and which is set forth in the solicitations from which this contract resulted. 3. If the contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the 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 be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each Contractor or Subcontractor participating in an approved Plan is individually required to comply with its obligations under the EEO clause, 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 an approved Plan does not excuse any covered Contractor’s or Subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables. 4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7 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 be able to achieve in each construction trade in which it has employees in the covered area. Covered Construction Contractors performing construction work in geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals 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 Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers. The Contractor is expected to make substantially uniform progress in meeting 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. 6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be 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 of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor. 7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following: a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to 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 a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses. c. 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 a union, a recruitment source or community organization and of what action was taken with respect to each such individual. If such 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 therefore, 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 a 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 area which expressly include minorities and women, including upgrading programs and apprenticeship and training 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 7b 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 it’s EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, 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 to all employees at each location where construction work is performed. g. Review, at least annually, the company’s EEO 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 onsite supervisory personnel such as Superintendents, General Foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contractor’s EEO 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 or anticipates doing business. i. 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 once month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment sources, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process. j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer and vacation employment to minority and female youth both on the site and in other areas of a Contractor’s work force. k. Validate all tests and other selection requirements where there is an obligation to do so under CFR Part 60-3. l. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory affect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these Specifications are being carried out. n. Ensure that all facilities and company activities re nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes. o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations. p. Conduct a review, at least annually, of all supervisors’ adherence to and performance under the Contractor’s EEO policies and affirmative action obligations. 8. Contractors are encouraged to participate in voluntary associations which assist in fulfilling one or more of their affirmative action obligations (7a 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 7a through p of these Specifications providing that the Contractor actively participates in the group, makes every effort to assure that the group has a 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, is 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 in a 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 if a specific minority group of women is underutilized). 10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, 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 subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, 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 obligation under these Specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these Specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these Specifications, the Director shall proceed in accordance with 41-CFR 60-4.8. 14. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government and to keep records. Records shall at 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 status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, Contractors shall not be required to maintain separate records. 15. Nothing herein provided shall be construed as a 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). 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. 2.The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor’s aggregate workforce in each trade on all construction work in the covered area, are as follows: Timetables Goals for minority participation for each trade Goals for female participation in each trade All years % 6.9% These goals are applicable to all the Contractor’s construction work (whether or not it 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 established 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 nonfederally involved construction. The Contractor’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth in 41 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 on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the Contractor’s goals shall be a violation of the contract, the Executive Order and the regulations in 41 CFR Part 60-4. 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 10 working days of award of any 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 of 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 subcontract is to be performed. 4.As used in this Notice, and in the contract resulting from this solicitation, the “covered area” is (insert description of the geographical areas where the contract is to be performed giving the state, county and city, if any) Current goals for minority and female participation for each trade can be found at the US Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) compliance assistance guides https://www.dol.gov/ofccp/CAGuides/. Construction Technical Assistance Guide https://www.dol.gov/ofccp/TAguides/TAC_FedContractors_JRF_QA_508c.pdf 5/17/18 1 MISSOURI STATE REVOLVING FUND Procedures for Implementation Minority Business Enterprise/Women’s Business Enterprise Each bidder/offeror must fully comply with the requirements, terms, conditions of 40 CFR Part 33 and DNR’s regulations to award a fair share of subagreements to minority and women’s business enterprises. The bidder/offeror commits itself to taking affirmative steps and complying with the Six Good Faith Efforts contained herein. Bidders/offerors will take affirmative steps prior to submission of bids/proposals. Affirmative Steps 1.When feasible, segmenting total work requirements to permit maximum minority business and women business enterprises (MBE/WBE) participation. 2.Assuring that MBEs and WBEs are solicited whenever they are potential sources of goods or services. This step may include: a.Sending letters or making other personal contacts with MBEs and WBEs (e.g. those whose names appear on lists prepared by the Missouri Office of Administration, the Missouri Department of Transportation, or the funding recipients and other MBEs and WBEs known to the bidder/offeror.) MBEs and WBEs should be contacted when other potential subcontractors are contacted, within reasonable time (fifteen days) prior to bid submission or closing date for receipt of initial offers. Those letters or other contacts should communicate the following: i.Specific description of the work to be subcontracted; ii.How and where to obtain a copy of plans and specifications or other detailed information needed to prepare a detailed price quotation; iii.Date the quotation is due to the bidder/offeror; iv. Name, address, and phone number of the person in the bidder/offeror’s firm whom the prospective MBE/WBE subcontractor should contact for additional information. b.Sending letters or making other personal contacts with local, state, federal and private agencies and DBE associations relevant to the project. Such contacts should provide the same information provided in the direct contacts to DBE firms. 3.Where feasible, establishing delivery schedules which will encourage participation by MBEs and WBEs. 5/17/18 2 Determination of Compliance It is to be noted that bidders/offerors must demonstrate compliance with DBE requirements in order to be deemed responsible. Demonstration of compliance shall include, but is not limited to, the following information: 1.Names, addresses and phone numbers of MBEs/WBEs expected to perform work; 2.Work to be performed by the MBEs and WBEs; 3.Aggregate dollar amount of work to be performed by MBEs and WBEs, showing aggregate to MBEs and aggregate to WBEs separately; 4.Description of contacts to MBE and WBE organizations, agencies and associations which serve MBEs/WBEs, including names of organizations, agencies and associations and dates of contacts; 5.Description of contacts to MBEs and WBEs, including number of contacts, fields, (i.e. equipment or material supplier, excavators, transport services, electrical subcontractors, plumbers, etc.) and dates of contacts. The Six Good Faith Efforts, and Minority and Women’s Business Enterprise Utilization Worksheet shall be included in the specifications. All bidders/offerors should complete the Minority and Women’s Business Enterprise Utilization Worksheet and submit to the funding recipient prior to contract award. Additional information on DBE requirements can be found at https://www.epa.gov/osbp/dbe_team.htm Lists of Certified Disadvantaged Business Enterprises – To help comply with the Six Good Faith Efforts, please visit the following web sites to access existing lists of certified DBEs: Small Business Administration https://dsbs.sba.gov/dsbs/search/dsp_dsbs.cfm Missouri Department of Transportation https://www.modot.mo.gov/ecr/index.htm Office of Equal Opportunity https://oeo.mo.gov/ The contractor shall not discriminate on the basis of race, color, nation 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. (Funding recipients may establish alternative methods of compliance equivalent to or more stringent than the above.) 5/17/18 3 “Six Good Faith Efforts” The Six Good Faith Efforts are required methods to be used by all Loan and Grant recipients to ensure that all disadvantaged business enterprises (DBEs) have the opportunity to compete for procurements funded by EPA financial assistance dollars. The prime contractor must pay its subcontractor for satisfactory performance no more than 30 days from the prime contractor’s receipt of payment from the recipient. A recipient must be notified in writing by its prime contractor prior to any termination of a DBE subcontractor for convenience by the prime contractor. If a DBE subcontractor fails to complete work under its subcontract for any reason, the recipient must require the prime contractor to employ the six good faith efforts described below if soliciting a replacement subcontractor. A recipient must require its prime contractor to employ the six good faith efforts even if the prime contractor has achieved its Fair Share Goals. The current Fair Share Goals are 10% for Minority Business Enterprises and 5% for Women Business Enterprises in accordance with 40 CFR, Part 33, Subpart D. The Six Good Faith Efforts are: 1.Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities. For Indian Tribal, State and Local Government recipients, this will include placing DBEs on solicitation lists and soliciting them whenever they are potential sources. 2.Make information on forthcoming opportunities available to DBEs and arrange time frames for contracts and establish delivery schedules, where requirements permit, in a way that encourages and facilitates participation by DBEs in the competitive process. This includes, whenever possible, posting solicitations for bids or proposals for a minimum of 30 calendar days before bid or proposal closing date. 3.Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs. For Indian Tribal, State and Local Government recipients, this will include dividing total requirements when economically feasible into smaller tasks or quantities to permit maximum participation by DBEs in the competitive process. 4.Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually. 5.Use the services and assistance of the SBA and the Minority Business development Agency of the Department of Commerce. 6.If the prime contractor awards subcontracts, require the prime contractor to take the above steps. 5/17/18 4 MISSOURI STATE REVOLVING FUND DISADVANTAGED BUSINESS ENTERPRISE (MINORITY AND WOMEN’S BUSINESS ENTERPRISE) UTILIZATION WORKSHEET Funding Recipient _____________________________________________________________ Project No.: ___________________________________________________________________ Contractor/Engineer: ____________________________________________________________ Contract Name: ________________________________________________________________ Contract Contact Person: ________________________________________________________ Contractor MBE/WBE: Yes No OA / MODOT / EPA Certification No.: ____________________________________________ Address: ______________________________________________________________________ Telephone No.: _____________________ Email Address ______________________________ Amount of Contract ____________________ Total Contract MBE% _____ WBE % _______ 1.MBE ______Subcontractor _________________________________________________ WBE ______Address ______________________________________________________ Contact Person _______________________________Telephone No. _______________ Email Address: ___________________________________________________________ OA MBE/WBE Certification Number ______________________ MODOT MBE/WBE Certification (Yes) _______ (No) ________ Amount of Subcontract ____________________________________________________ Scope of Work ___________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 2.MBE ______Subcontractor _________________________________________________ WBE ______Address ______________________________________________________ Contact Person _______________________________Telephone No. _______________ Email Address: ___________________________________________________________ OA MBE/WBE Certification Number ______________________ MODOT MBE/WBE Certification (Yes) _______ (No) ________ Amount of Subcontract ____________________________________________________ Scope of Work ___________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 5/17/18 5 3.MBE ______Subcontractor _________________________________________________ WBE ______Address ______________________________________________________ Contact Person _______________________________Telephone No. _______________ Email Address: ___________________________________________________________ OA MBE/WBE Certification Number ______________________ MODOT MBE/WBE Certification (Yes) _______ (No) ________ Amount of Subcontract ____________________________________________________ Scope of Work ___________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 4.MBE ______Subcontractor _________________________________________________ WBE ______Address ______________________________________________________ Contact Person _______________________________Telephone No. _______________ Email Address: __________________________________________________________ OA MBE/WBE Certification Number ______________________ MODOT MBE/WBE Certification (Yes) _______ (No) ________ Amount of Subcontract ____________________________________________________ Scope of Work ___________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 5.MBE ______Subcontractor _________________________________________________ WBE ______Address ______________________________________________________ Contact Person _______________________________Telephone No. _______________ Email Address: ___________________________________________________________ OA MBE/WBE Certification Number ______________________ MODOT MBE/WBE Certification (Yes) _______ (No) ________ Amount of Subcontract ____________________________________________________ Scope of Work ___________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 6.MBE ______Subcontractor _________________________________________________ WBE ______Address ______________________________________________________ Contact Person _______________________________Telephone No. _______________ Email Address: ___________________________________________________________ OA MBE/WBE Certification Number ______________________ MODOT MBE/WBE Certification (Yes) _______ (No) ________ Amount of Subcontract ____________________________________________________ Scope of Work ___________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ 5/17/18 6 Comments: ____________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Prepared By: ___________________________________________________________________ Telephone Number: _____________________________________________________________ Date: _____________________________________________________________________ EXECUTIVE ORDER 05-30 RECEIVED & FILED SEP 0 8 2005 S10N I SION WHEREAS, since 1990, the Office of Administration, State of Missouri has endeavored to "establish and implement a plan to increase and maintain the participation of certified socially and economically disadvantaged small business concerns or minority business enterprises, directly or indirectly, in contracts for supplies, services, and construction contracts, consistent with targets determined after an appropriate study conducted to determine the availability of socially and economically disadvantaged small business concerns and minority business enterprises in the marketplace;" pursuant to Senate Bills 808 & 672 passed by the General Assembly and signed into law by then Governor Ashcroft; and WHEREAS, such a study was conducted and found statistically significant disparities in state contractual expenditures for construction and the purchase of goods and services, as compared to the ready, willing and able minority and women -owned business enterprises (M/WBEs) in the state; and WHEREAS, Executive Order 98-21 established goals to increase the percentage of goods and services procured from certified M/WBEs; and WHEREAS, the goals for M/WBE participation established in Executive Order 98-21 have not been substantially met; and statistically significant disparities in state contractual expenditures for construction and the purchase of goods and services from minority and women -owned businesses in the state still exist; and WHEREAS, on September 27, 2004, Behavioral Interventions, Inc. filed a lawsuit in the U.S. District Court, in the Western District of Missouri challenging the propriety of Missouri's M/WBE program. In January 2005, a preliminary injunction was issued ordering the Office of Administration, State of Missouri to suspend the placing of M/WBE requirements in any procurement by the State of Missouri. Because of the uncertainty created in the aftermath of the litigation, the program has undergone comprehensive revision not only to withstand constitutional scrutiny, but also to more adequately address the compelling needs and obstacles of minority and women -owned businesses to gain greater access to business opportunities, both public and private, within the state of Missouri; and WHEREAS, the State of Missouri is dedicated to the compelling governmental interest in remedying race and sex based discrimination in a manner consistent with state and federal law; and WHEREAS, the State of Missouri is committed to enhancing the economic health and prosperity of the state by promoting the greater use of minority and women -owned businesses. Job creation for Missouri residents, and therefore the success of minority and women -owned businesses, are paramount goals of this Administration; and WHEREAS, the State of Missouri will gain enormously from improvements in expanded business opportunities for Missouri residents created by the expansion of minority and women -owned businesses and through the additional tax revenues generated by those individuals and businesses; and WHEREAS, to further these goals, which are of the highest priority of this Administration, it is the policy of this Administration to develop economic opportunities for minority and women -owned businesses wherever possible. NOW, THEREFORE, I, Matt Blunt, Governor of the State of Missouri, under the authority vested in me under the constitution and the laws of this state, to fulfill the mandate of the General Assembly in Senate Bills 808 & 672 and to pursue the compelling interest of remedying discrimination, do hereby declare the following narrowly tailored policies and procedures shall be adopted by the Executive Branch of state government in procuring all types of goods and services: 1. The Office of Supplier and Workforce Diversity (OSWD) is established to replace the Office of Equal Opportunity. All the authority, powers and privileges of the Office of Equal Opportunity is transferred to the OSWD. The Director of OSWD shall be appointed by the Governor. The Director of OSWD shall report to the Commissioner of Administration. The Director shall have primary responsibility for assisting in the coordination and implementation of affirmative action throughout all departments of the executive branch of state government, including programs to increase M/WBE participation, and advising the Governor on issues regarding equal employment opportunity, affirmative action, and efforts to administer affirmative action goals and timetables for implementation throughout the departments of the executive branch. The Office of State Compliance Officer is hereby abolished. The Director of OSWD shall be the State's chief compliance officer for the executive branch of state government to ensure that the State of Missouri is complying with all federal and state laws concerning equal employment opportunity and affirmative action. If needed, the Director shall assist each department in developing an Affirmative Action Plan of Implementation. Additionally, the Director of OSWD shall review progress reports of the departments and shall meet biannually with each department director to evaluate departmental results and determine the course of future affirmative action goals, timetables, recruiting, planning, and implementation. The results of each meeting shall be reported in writing to the Governor and Commissioner of Administration. Not later than January first of each calendar year, the Director of OSWD shall provide a report to the Governor and the Commissioner of Administration which summarizes the activities of each department pursuant to this Order and which contains recommendations for additional programs to accomplish the purposes of this Order. The Commissioner of Administration shall provide the Director of OSWD with such facilities, staff, resources, equipment, and supplies as are necessary to carry out the duties set forth herein. The Director of OSWD shall submit a proposal each fiscal year to the Commissioner of Administration detailing the needs of the Office of Supplier and Workforce Diversity. 2. All state agencies shall continue to make every feasible effort to target the percentage of goods and services procured from certified MBEs and WBEs to 10% and 5%, respectively. These efforts shall include participation in an Executive Branch Contract Compliance Council which shall, in cooperation with the OSWD, review procurement efforts to assist in meeting the requirements of this Executive Order. 3. The Divisions of Purchasing and Materials Management (PMM) and Facilities Management, Design and Construction (FMDC) within the Office of Administration shall be authorized to implement the following programs to increase M/WBE procurement: a. PMM shall be authorized to encourage prime contractors to subcontract with M/WBEs on all contracts of $100,000 or greater. OSWD contracts shall include a provision for participation which will allow the bidders to tailor a plan to fit the contract. Mandatory percentage goals of M/WBE participation shall not be established in violation of federal or state law. M/WBE participation shall be encouraged by PMM in consultation with OSWD and the user agency depending on the availability of M/WBE vendors in the applicable commodity/service and geographical area. PMM shall consider M/WBE participation as a significant factor in a contract bid. The M/WBE participation will be evaluated along with other criteria in the award of a bid. It is intended that 10% MBE and 5% WBE percentage is desired. The participation can be met through the use of prime contractors, subcontractors, suppliers, joint ventures, or other arrangements that afford meaningful opportunities for M/WBE participation. 2 OSWD in conjunction with PMM shall also appoint a M/WBE Purchasing Manager for the purpose of promoting and coordinating the participation of M/WBEs in State of Missouri contracts. b. FMDC shall be authorized to evaluate M/WBE participation in design contracts, as part of the quality -based selection process, for construction projects worth $1.5 million or more. On contracts with lesser value, FMDC shall make special efforts to target M/WBEs as prime contractors. Overall participation targets for each fiscal year shall be 10% MBE and 5% WBE; however, mandatory percentage goals shall not be established in violation of federal or state law. The targets may be met through the use of prime contractors, subcontractors, joint ventures, or other arrangements that afford meaningful opportunities for M/WBE participation. FMDC shall also be authorized to seek participation of M/WBEs on construction contracts. The targets shall be set on a project by project basis by FMDC in consultation with the OSWD, taking into account the availability of M/WBE contractors in the applicable geographic area and construction trade, with the overall participation targets for each fiscal year at 10% MBE and 5% WBE. The targets may be met through the use of prime contractors, subcontractors, suppliers, joint ventures, or other arrangements that afford meaningful opportunities for M/WBE participation. c. Both FMDC and the PMM shall establish policies or rules to implement these programs which shall include a waiver provision for prime contractors who make a good faith effort to attain such targets but do not succeed. They shall also establish enforcement procedures in cooperation with the OSWD to assist contractors to meet subcontracting commitments. Their programs shall be reviewed annually to determine whether targets should be modified. d. FMDC and PMM are authorized and directed to identify and consult with such entities as the St. Louis Minority Business Council, the Kansas City Minority Supplier Council and the Kansas City Council of Women Business Owners in identifying M/WBEs to participate in state procurements. 4. OSWD shall monitor the programs and work with FMDC and PMM in their implementation. The OSWD shall have the following responsibilities and carry out the following tasks: a. to actively recruit, facilitate and serve as a clearinghouse for M/WBE contractors to participate in the programs; b. to cooperate with the PMM and the FMDC in the administration and enforcement of the M/WBE participation programs; c. to cooperate with the PMM and the FMDC in the development of policies, forms, and procedures to carry out the requirements of the M/WBE participation programs; d. to participate in M/WBE target setting; e. to perform fact -gathering and record -keeping to determine both the effectiveness of state participation programs and the availability and utilization of eligible M/WBEs on individual projects, including levels of participation and availability in specific areas; f. to certify contractors as M/WBEs; g. to assess the continuing need for M/WBE participation targets for specific contracting areas; h. to monitor contractor participation with M/WBE targets; and 3 i. to recommend sanctions for contractors who fail to faithfully execute M/WBE participation plans during the course of contract performance. 5. The programs shall be reviewed annually to monitor the level of M/WBE participation achieved in state contracting areas during the previous year. An assessment of the programs and whether their continuation is necessary shall be delivered to the Governor and the General Assembly. After it is determined that M/WBEs participate in state contracts in a manner commensurate with their presence and capability in the state marketplace, the programs set forth in section 2 will be terminated. 6. Executive Order No. 98-21 (1998) and article II of Executive Order 94-03 (1994) are hereby superseded and replaced by this Executive Order. ATTEST: IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the Great Seal of the State of Missouri, in the City of Jefferson, on this 8th day of September, 2005. Matt Blunt Governor 04<a4, Robin Carnahan Secretary of State 4 EXECUTIVE ORDER 15-06 RECEIVED & FILED OCT 21 2015 SECRETARY OF STATECOMMISSIONS DIVISION WHEREAS, the State of Missouri is committed to enhancing the economic health and prosperity of Minority and Women Business Enterprises (M/WBEs) through the use of M/WBE contract benchmarks established in state contracts for supplies, services, and construction that are consistent with §§37.020 -37.023, RSMo, and the findings of the most current disparity study; and WHEREAS, upon funding being appropriated by the General Assembly in 2013, the Office of Administration (OA) commissioned a Disparity Study which was completed on October 24, 2014, that studied the utilization of M/WBEs in state contracts and the availability of M/WBEs in the applicable marketplace; and WHEREAS, Executive Order 14-07 established the Disparity Study Oversight Review Committee to review the findings of the 2014 Disparity Study and to produce meaningful recommendations to assist the State of Missouri in developing a contracting process that is inclusive, promotes diversity, and provides greater opportunity for M/WBEs; and WHEREAS, after conducting a thorough review and analysis of the findings of the 2014 Disparity Study, the Disparity Study Oversight Review Committee submitted its report to the Governor on January 27, 2015; and WHEREAS, the Disparity Study Oversight Review Committee's report sets forth recommendations to help eliminate the lingering effects of discrimination to ensure a level playing-field for all Missouri business owners; and WHEREAS, on September 14, 2015, the Ferguson Commission, created pursuant to Executive Order 14-15, released its final report which called for Missouri to implement a statewide M/WBE program "with outcomes measures that incorporate capacity building, mentoring, and education with respect to the state and local procurement system;" and WHEREAS, the State of Missouri is dedicated to the compelling governmental interest of remedying race and sex based discrimination in a manner consistent with state and federal law. NOW, THEREFORE, I, JEREMIAH W. (JAY) NIXON, GOVERNOR OF THE STATE OF MISSOURI, in recognition of the obligations of the State of Missouri and by virtue of the authority vested in me by the Constitution and the Laws of the State of Missouri, do hereby state that the following narrowly tailored policies and procedures shall be adopted by the Executive Branch of state government in procuring goods and services: 1.All state agencies shall make every feasible effort to increase the percentage of goods and services procured from certified M/WBEs in order to achieve the annual goals of 10% MBEs and 10% WBEs of all annual Executive Branch procurement funds. These efforts shall include participation in an Executive Branch Contract Compliance Council which shall, in cooperation with the Office of Administration, Office of Equal Opportunity (OEO), review procurement efforts to assist in meeting the requirements of this Executive Order. 2.Both the Division of Purchasing and Facilities Management, Design and Construction (FMDC) within the Office of Administration shall be authorized to implement the following program to increase M/WBE procurements: a.Division of Purchasing and FMDC shall encourage prime contractors to subcontract with M/WBEs on state contracts. Division of Purchasing and FMDC contracts are permitted to include a provision setting forth participation of M/WBEs as prime contractors or subcontractors who perform a commercially useful function. M/WBE participation requirements shall be determined by the Division of Purchasing and FMDC, in consultation with OEO and the user agency, by evaluating the availability of M/WBE vendors in the applicable commodity/service and geographical area as determined by the most recent disparity study and other applicable factors. Division of Purchasing and FMDC shall use individual contract percentages to help meet the state's annual program goals. The M/WBE participation will be evaluated for responsiveness along with other criteria in the award of a bid. The participation can be met through the use of prime contractors, subcontractors, suppliers, joint ventures, or other arrangements that afford meaningful opportunities for M/WBE participation. b.Division of Purchasing and FMDC shall revise their policies and regulations to further implement this program which shall include a waiver provision for prime contractors who make a good faith effort to take all necessary and reasonable steps to attain such percentages but are otherwise unable to achieve them. Division of Purchasing and FMDC shall also establish enforcement procedures, in cooperation with OEO and the Contract Oversight Office within the Office of Administration, which shall include consequences for failure to meet percentage commitments unless a good faith waiver is obtained from the Division of Purchasing or FMDC, respectively. c.Division of Purchasing and FMDC are authorized and directed to identify and consult with such other certifying entities as recommended by OEO in order to facilitate M/WBEs to participate in state procurements. 3.The Office of Administration shall also be authorized to: a.Conduct a comprehensive review of OEO and determine the need for increased funding and personnel to enable OEO to carry out the work it has been assigned. b.Evaluate the state's current M/WBE eligibility standards and determine what revisions, if any, should be considered to applicable statutes and regulations. This includes an evaluation of whether M/WBE eligibility should be capped based upon a firm's gross income and/or personal net worth. The Office of Administration should refer to the Disparity Study and the Committee's report as a reference regarding potential revisions to the program's eligibility standards. c.Research existing bonding and financing programs for small vendors that enhance access to bonding and working capital in order to reduce barriers to business development and success, and determine the feasibility of developing such a program within OEO. d.Evaluate the existing experience and surety bonding requirements and determine what adjustments, if any, should be considered to facilitate increased M/WBE participation. e.Evaluate the possibility of lengthening solicitation periods for vendors, whenever possible, in an effort to increase M/WBE participation. f.Research the feasibility and consider establishing a Mentor-Protege Program within OEO, whereby a larger firm provides instruction and training to an emerging firm to increase the protege's skills, capacities, and business areas. g.Educate and advise state agencies on implementing internal procedures that ensure compliance with§ 8.690 RSMo. h.Implement an electronic contracting system that provides access to state contracting information and collects measureable data to document the achievement of M/WBE goals. 4.OEO shall work with the Division of Purchasing and FMDC in the implementation of this Executive Order, and shall have the following responsibilities: a. Actively recruit, certify, and serve as a clearinghouse for M/WBEs to participate in the program. b.Partner with agencies and organizations that conduct similar services that can provide technical assistance and supportive services. c. Cooperate with the Division of Purchasing, FMDC, and the Contract Oversight Office in the administration and enforcement of the M/WBE participation program and contract requirements. d. Cooperate with the Division of Purchasing and FMDC in the development of policies, forms, and procedures to carry out the requirements of the M/WBE participation program. e. Provide guidance to the Division ofPurchasing and FMDC in the setting ofM/WBE individual contract percentages. f. Review and record the effectiveness of the state agencies' participation in the program in light of the availability and utilization of eligible M/WBEs on individual contracts, and make recommendations to the agencies for improvement and enforcement of the program. g. Provide outreach to M/WBEs to educate firms about the program, the state's procurement process, and business elements such as obtaining bonding, lines of credit, or other related services. Outreach efforts shall also serve to foster enhanced working relationships between M/WBEs and prime contractors. h. Recommend sanctions for contractors who fail to faithfully execute M/WBE participation requirements during the course of contract performance. 5. OEO shall review the program annually to monitor the level ofM/WBE participation achieved in state contracting areas during the previous fiscal year. An assessment of the program and whether the continuation is necessary shall be prepared by OEO and delivered to the Governor and the General Assembly by March after the completion of the fiscal year. After it is determined by OEO that M/WBEs participate in state contracts at a level commensurate with their presence and capability in the state marketplace, then the program set forth in this Executive Order shall be terminated. If the program is still deemed to be necessary on March 1, 2019, a new Disparity Study should be conducted and a new Disparity Study Oversight Review Committee should be appointed to review the results of that study. 6. This Order shall take effect immediately and supersedes Executive Order 05-30. ATTEST: IN WITNESS WHEREOF, I have hereunto set my hand and cause to be affixed the Great Seal of the State of Missouri, in the City of Jefferson, on this 21st day of October, 2015. Jason Kander Secretary of State MISSOURI DEPARTMENT OF NATURAL RESOURCES DIVISION OF ENVIRONMENTAL QUALITY FINANCIAL ASSISTANCE CENTER Last Revised March 25, 2022 Certification Regarding Debarment and Suspension Applicant Name: __________________________________________________________________ Project Name: __________________________________________________________________ Project No.: _________________________ SAM.gov UEI No.: _____________________ The prospective participant certifies to the best of its knowledge and belief that it and its principals: a)Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any governmental (federal, state, or local) entity; b) Have not within a three-year period preceding this certification been convicted of or had a civil judgment rendered against them for: 1) 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 a public transaction; 2) Violation of federal or state antitrust statutes relating to the submission of offers; or 3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c)Are not presently indicted for, or otherwise criminally or civilly charged by a governmental entity (federal, state, or 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 certification, had one or more public transactions (federal, state, or local) terminated for cause or default. I understand that a false statement on this certification may be grounds for rejection of this proposal or termination of the award. I am able to certify to the above statements. I am unable to certify to the above statements and attached my explanation. _____________________________ _____________________________ Typed Name of Authorized Representative Title of Authorized Representative _____________________________ _____________________________ Signature of Authorized Representative Date MISSOURI DEPARTMENT OF NATURAL RESOURCES DIVISION OF ENVIRONMENTAL QUALITY FINANCIAL ASSISTANCE CENTER Last Revised March 25, 2022 Certification Regarding Debarment and Suspension Instructions The Missouri Department of Natural Resources receives assistance from the federal government, and the funds provided to a community constitute a sub-agreement. Accordingly, each prospective recipient of a grant, loan, or cooperative agreement and any contractor or subcontractor must agree to fully comply with Executive Order 12549, 2 C.F.R. Part 180, and 2 C.F.R. Part 1532 regarding Debarment and Suspension. “Principals,” for the purposes of this certification, means officers; directors; owners; partners; and persons having primary management or supervisory responsibilities within an entity (e.g., general manager; plant manager; head of a subsidiary, division, or business segment, and similar positions). The prospective grant, loan, or cooperative agreement recipient should return the signed certification, and explanation if needed, with its application to: Missouri Department of Natural Resources Financial Assistance Center PO Box 176 Jefferson City, MO 65102-0176 Or email to fac@dnr.mo.gov. The recipient of funding should also obtain a certification from their consulting engineer and prime contractor. The funding recipient shall also check the status on the System for Award Management (SAM) located on the Internet at https://www.sam.gov/portal/public/SAM/. Each prospective subcontractor should submit a completed certification or explanation to the prime contractor for the project. U.S. ENVIRONMENTAL PROTECTION AGENCY WATER QUALITY OFFICE CERTIFICATION OF NONSEGREGATED FACILITIES (Applicable to federally assisted construction contracts and related sub-contracts exceeding $10,000 which are not exempt from the Equal Opportunity clause.) The federally assisted construction contractor certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The federally assisted construction contractor certifies further that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The federally assisted construction contractor agrees that a breach of this certification is a violation of the Equal Opportunity clause in this contract. As used in this certification, the term “segregated facilities” means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, creed, color, or national origin, because of habit, local custom, or otherwise. The federally assisted construction contractor agrees that (except where he has obtained identical certifications from proposed subcontractors for specific time periods) he will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause, and that he will retain such certifications in his files. Signature _______________________________________ Name and Title of Signer Date____________________ _________________________________________________ (Print or Type) Firm Name NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001. Attachment 6 EXHIBIT _ BUSINESS ENTITY CERTIFICATION, ENROLLMENT DOCUMENTATION, AND AFFIDAVIT OF WORK AUTHORIZATION BUSINESS ENTITY CERTIFICATION: The bidder/contractor must certify their current business status by completing either Box A or Box B or Box C on this Exhibit. BOX A: To be completed by a non-business entity as defined below. BOX B: To be completed by a business entity who has not yet completed and submitted documentation pertaining to the federal work authorization program as described at http://www.dhs.gov/files/programs/gc_1185221678150.shtm. BOX C: To be completed by a business entity who has current work authorization documentation on file with a Missouri state agency including Division of Purchasing and Materials Management. Business entity, as defined in section 285.525, RSMo, pertaining to section 285.530, RSMo, is any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood. The term “business entity” shall include but not be limited to self-employed individuals, partnerships, corporations, contractors, and subcontractors. The term “business entity” shall include any business entity that possesses a business permit, license, or tax certificate issued by the state, any business entity that is exempt by law fro m obtaining such a business permit, and any business entity that is operating unlawfully without such a business permit. The term “business entity” shall not include a self-employed individual with no employees or entities utilizing the services of direct sellers as defined in subdivision (17) of subsection 12 of section 288.034, RSMo. Note: Regarding governmental entities, business entity includes Missouri schools, Missouri universities (other than stated in Box C), out of state agencies, out of state schools, out of state universities, and political subdivisions. A business entity does not include Missouri state agencies and federal government entities. BOX A – CURRENTLY NOT A BUSINESS ENTITY I certify that (Company/Individual Name) DOES NOT CURRENTLY MEET the definition of a business entity, as defined in section 285.525, RSMo pertaining to section 285.530, RSMo as stated above, because: (check the applicable business status that applies below) I am a self-employed individual with no employees; OR The company that I represent employs the services of direct sellers as defined in subdivision (17) of subsection 12 of section 288.034, RSMo. I certify that I am not an alien unlawfully present in the United States and if (Company/Individual Name) is awarded a contract for the services requested herein under (Bid/SFS/Contract Number) and if the business status changes during the life of the contract to become a business entity as defined in section 285.525, RSMo, pertaining to section 285.530, RSMo, then, prior to the performance of any services as a business entity, (Company/Individual Name) agrees to complete Box B, comply with the requirements stated in Box B and provide the documentation required in Box B of this exhibit. (insert agency name) with all Authorized Representative’s Name (Please Print) Authorized Representative’s Signature Company Name (if applicable) Date Attachment 6 EXHIBIT _, continued (Complete the following if you DO NOT have the E-Verify documentation and a current Affidavit of Work Authorization already on file with the State of Missouri. If completing Box B, do not complete Box C.) BOX B – CURRENT BUSINESS ENTITY STATUS I certify that (Business Entity Name) MEETS the definition of a business entity as defined in section 285.525, RSMo, pertaining to section 285.530. Authorized Business Entity Representative’s Name (Please Print) Authorized Business Entity Representative’s Signature Business Entity Name Date E-Mail Address As a business entity, the bidder/contractor must perform/provide each of the following. The bidder/contractor should check each to verify completion/submission of all of the following: Enroll and participate in the E-Verify federal work authorization program (Website: http://www.uscis.gov/e-verify; Phone: 888-464-4218; Email: e- verify@dhs.gov) with respect to the employees hired after enrollment in the program who are proposed to work in connection with the services required herein; AND Provide documentation affirming said company’s/individual’s enrollment and participation in the E- Verify federal work authorization program. Documentation shall include EITHER the E-Verify Employment Eligibility Verification page listing the bidder’s/contractor’s name and company ID OR a page from the E-Verify Memorandum of Understanding (MOU) listing the bidder’s/contractor’s name and the MOU signature page completed and signed, at minimum, by the bidder/contractor and the Department of Homeland Security – Verification Division. If the signature page of the MOU lists the bidder’s/contractor’s name and company ID, then no additional pages of the MOU must be submitted; AND Submit a completed, notarized Affidavit of Work Authorization provided on the next page of this Exhibit. EXHIBIT _, continued Attachment 6 AFFIDAVIT OF WORK AUTHORIZATION: The bidder/contractor who meets the section 285.525, RSMo, definition of a business entity must complete and return the following Affidavit of Work Authorization. Comes now (Name of Business Entity Authorized Representative) as (Position/Title) first being duly sworn on my oath, affirm (Business Entity Name) is enrolled and will continue to participate in the E-Verify federal work authorization program with respect to employees hired after enrollment in the program who are proposed to work in connection with the services related to contract(s) with the State of Missouri for the duration of the contract(s), if awarded in accordance with subsection 2 of section 285.530, RSMo. I also affirm that (Business Entity Name) does not and will not knowingly employ a person who is an unauthorized alien in connection with the contracted services provided under the contract(s) for the duration of the contract(s), if awarded. In Affirmation thereof, the facts stated above are true and correct. (The undersigned understands that false statements made in this filing are subject to the penalties provided under section 575.040, RSMo.) Authorized Representative’s Signature Printed Name Title Date E-Mail Address E-Verify Company ID Number Subscribed and sworn to before me this of (DAY) (MONTH, YEAR) . I am commissioned as a notary public within the County of , and my commission expires on , State of (NAME OF COUNTY) . (NAME OF STATE) (DATE) Signature of Notary Date EXHIBIT _, continued Attachment 6 (Complete the following if you have the E-Verify documentation and a current Affidavit of Work Authorization already on file with the State of Missouri. If completing Box C, do not complete Box B.) BOX C – AFFIDAVIT ON FILE - CURRENT BUSINESS ENTITY STATUS I certify that (Business Entity Name) MEETS the definition of a business entity as defined in section 285.525, RSMo, pertaining to section 285.530, RSMo, and have enrolled and currently participates in the E-Verify federal work authorization program with respect to the employees hired after enrollment in the program who are proposed to work in connection with the services related to contract(s) with the State of Missouri. We have previously provided documentation to a Missouri state agency or public university that affirms enrollment and participation in the E-Verify federal work authorization program. The documentation that was previously provided included the following. The E-Verify Employment Eligibility Verification page OR a page from the E-Verify Memorandum of Understanding (MOU) listing the bidder’s/contractor’s name and the MOU signature page complete d and signed by the bidder/contractor and the Department of Homeland Security – Verification Division A current, notarized Affidavit of Work Authorization (must be completed, signed, and notarized within the past twelve months). Name of Missouri State Agency or Public University* to Which Previous E-Verify Documentation Submitted: (*Public University includes the following five schools under chapter 34, RSMo: Harris-Stowe State University – St. Louis; Missouri Southern State University – Joplin; Missouri Western State University – St. Joseph; Northwest Missouri State University – Maryville; Southeast Missouri State University – Cape Girardeau.) Date of Previous E-Verify Documentation Submission: Previous Bid/Contract Number for Which Previous E-Verify Documentation Submitted: (if known) Authorized Business Entity Representative’s Authorized Business Entity Name (Please Print) Representative’s Signature E-Verify MOU Company ID Number E-Mail Address Business Entity Name Date FOR STATE USE ONLY Documentation Verification Completed By: Buyer Date Domestic Products Procurement Act – RSMo 34.350 – 34.359 Certification Each contract for the purchase or lease of manufactured goods or commodities by any public agency, and each contract made by a public agency for construction, alteration, repair, or maintenance of any public works shall contain a provision that any manufactured goods or commodities used or supplied in the performance of that contract or any subcontract thereto shall be manufactured or produced in the United States. (34.353.1 RSMo) Project Name: _____________________________________________________________________ Project Number: ___________________________________________________________________ Contract Name: ____________________________________________________________________ Please check one of the following and sign where indicated. All of the iron, steel, and manufactured goods used in the project are produced in the United States. A waiver is being requested from the ____________________________ to the domestic (owner) products provision due to the following exception: The specified products are not manufactured or produced in the United States in sufficient quantities or manufactured or produced in the United States within the necessary time frames in sufficient quantities. The cost for the specified products would increase the contract by more than 10 percent*; or Only one line of a product is manufactured or produced in the United States. Documentation of at least one of the cases above must be provided. List below the materials that cannot comply with the Domestic Product Procurement Act provisions. Additional sheets (attach if necessary) Name of Contracting Firm Signature Date Name and Title of Signer (Please type) *In accordance with the Federal Water Pollution Control Act, Section 608, all iron and steel products used in a State Revolving Fund project should be produced in the United States. This requirement does not apply where the inclusion of iron and steel products produced in the United States will increase the cost of the overall project by more than 25 percent. Missouri DNR CWSRF (03/31/15) OMB Control No. 20- Approval expires 4//21 The public reporting and recordkeeping burden for this collection of information is estimated to average 15 minutes per response. 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 through the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed form to this address. United States ENVIRONMENTAL PROTECTION AGENCY Washington, DC 20460 EPA Form 6600-06 (Rev. 06/2014) Previous editions are obsolete. ________________________________________________________________________________________________ _________________________________ EPA Project Control Number CERTIFICATION REGARDING LOBBYING CERTIFICATION FOR CONTRACTS, GRANTS, LOANS AND COOPERATIVE AGREEMENTS The undersigned certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including sub-contracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31 U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. ______________________________________________ Typed Name & Title of Authorized Representative ______________________________________________ Signature and Date of Authorized Representative Approved by OMB 0348-0046 Disclosure of Lobbying Activities Complete this form to disclose lobbying activities pursuant to 31 U.S.C. 1352 (See reverse for public burden disclosure) 1.Type of Federal Action: a. contract ____ b. grant c. cooperative agreement d. loan e. loan guarantee f. loan insurance 2.Status of Federal Action: a. bid/offer/application _____ b. initial award c. post-award 3.Report Type: a. initial filing _____ b. material change For material change only: Year _______ quarter _______ Date of last report___________ 4.Name and Address of Reporting Entity: ____ Prime _____ Subawardee Tier______, if Known: Congressional District, if known: 5.If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime: Congressional District, if known: 6.Federal Department/Agency:7.Federal Program Name/Description: CFDA Number, if applicable: ____________ 8.Federal Action Number, if known:9.Award Amount, if known: $ 10. a. Name and Address of Lobbying Registrant (if individual, last name, first name, MI): b. Individuals Performing Services (including address if different from No. 10a) (last name, first name, MI): 11. Information requested through this form is authorized by title 31 U.S.C. section 1352. This disclosure of lobbying activities is a material representation of fact upon which reliance was placed by the tier above when this transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be reported to the Congress semi -annually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Signature: __________________________________ Print Name: _____ Title: _____ Telephone No.: ____________ Date: _______ Federal Use Only Authorized for Local Reproduction Standard Form - LLL (Rev. 7-97) INSTRUCTIONS FOR COMPLETION OF SF-LLL, DISCLOSURE OF LOBBYING ACTIVITIES This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. section 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information. 1.Identify the type of covered Federal action for which lobbying activity is and/or has been secured to influence the outcome of a covered Federal action. 2.Identify the status of the covered Federal action. 3.Identify the appropriate classification of this report. If this is a followup report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action. 4.Enter the full name, address, city, State and zip code of the reporting entity. Include Congressional District, if known. Check the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the 1st tier. Subawards include but are not limited to subcontracts, subgrants and contract awards under grants. 5.If the organization filing the report in item 4 checks “Subawardee,” then enter the full name, address, city, State and zip code of the prime Federal recipient. Include Congressional District, if known. 6.Enter the name of the federal agency making the award or loan commitment. Include at least one organizational level below agency name, if known. For example, Department of Transportation, United States Coast Guard. 7.Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments. 8.Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (e.g., Request for Proposal (RFP) number; Invitations for Bid (IFB) number; grant announcement number; the contract, grant, or loan award number; the application/proposal control number assigned by the Federal agency). Included prefixes, e.g., “RFP-DE-90-001.” 9.For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount of the award/loan commitment for the prime entity identified in item 4 or 5. 10.(a) Enter the full name, address, city, State and zip code of the lobbying registrant under the Lobbying Disclosure Act of 1995 engaged by the reporting entity identified in item 4 to influence the covered Federal action. (b) Enter the full names of the individual(s) performing services, and include full address if different from 10(a). Enter Last Name, First Name, and Middle Initial (MI). 11.The certifying official shall sign and date the form, print his/her name, title, and telephone number. According to the Paperwork Reduction Act, as amended, no persons are required to respond to a collection of information unless it displays a valid OMB control Number. The valid OMB control number for this information collection is OMB No. 0348-0046. Public reporting burden for this collection of information is estimated to average 10 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, DC 20503 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 MAR 2 0 2014 OFFICE OF WAf ER MEMORANDUM SUBJECT: Implementation of American Iron and Steel provisions of P.L. 113-76, Consolidated Appropriations Act, 2014 FROM: f ( Andrew D. Sawyers, Director C. ' \) Office of Wastewater Management (4201 Peter C. Grevatt, Director Office of Ground Water and TO: Water Management Division Directors Regions I- X P.L. 113-76, Consolidated Appropriations Act, 2014 (Act), includes an "American Iron and Steel (AIS)" requirement in section 436 that requires Clean Water State Revolving Loan Fund (CWSRF) and Drinking Water State Revolving Loan Fund (DWSRF) assistance recipients to use iron and steel products that are produced in the United States for projects for the construction, alteration, mai ntenance, or repair of a public water system or treatment works if the project is funded through an assistance agreement executed beginning January 17, 2014 (enactment of the Act), through the end · of Federal Fiscal Year 2014. Section 436 also sets forth certain circumstances under which EPA may waive the AIS requirement. Furthermore, the Act specifically exempts projects where engineering plans and specifications were approved by a State agency prior to January 17,2014. The approach described below explai ns how EPA will implement the AIS requirement. The first section is in the form of questions and answers that address the types of projects that must comply with the AIS requirement, the types of products covered by the AIS requirement, and compliance. The second section is a step-by-step process for requesting waivers and the circumstances under which waivers may be granted. Internet Address (URL) • http.//Www.epa.gov Recycled/Recyclable ·Printed w1th Vegetable OilBased Inks on 100% Postconsumer. Process Chlorine Free Recycled Paper 2 Implementation The Act states: Sec. 436. (a)(1) None of the funds made available by a State water pollution control revolving fund as authorized by title VI of the Federal Water Pollution Control Act (33 U.S.C. 1381 et seq.) or made available by a drinking water treatment revolving loan fund as authorized by section 1452 of the Safe Drinking Water Act (42 U.S.C. 300j–12) shall be used for a project for the construction, alteration, maintenance, or repair of a public water system or treatment works unless all of the iron and steel products used in the project are produced in the United States. (2) In this section, the term ‘‘iron and steel products’’ means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. (b) Subsection (a) shall not apply in any case or category of cases in which the Administrator of the Environmental Protection Agency (in this section referred to as the ‘‘Administrator’’) finds that— (1) applying subsection (a) would be inconsistent with the public interest; (2)iron and steel products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3)inclusion of iron and steel products produced in the United States will increase the cost of the overall project by more than 25 percent. (c) If the Administrator receives a request for a waiver under this section, the Administrator shall make available to the public on an informal basis a copy of the request and information available to the Administrator concerning the request, and shall allow for informal public input on the request for at least 15 days prior to making a finding based on the request. The Administrator shall make the request and accompanying information available by electronic means, including on the official public Internet Web site of the Environmental Protection Agency. (d)This section shall be applied in a manner consistent with United States obligations under international agreements. (e)The Administrator may retain up to 0.25 percent of the funds appropriated in this Act for the Clean and Drinking Water State Revolving Funds for carrying out 3 the provisions described in subsection (a)(1) for management and oversight of the requirements of this section. (f)This section does not apply with respect to a project if a State agenc y approves the engineering plans and specifications for the project, in that agency’s capacity to approve such plans and specifications prior to a project requesting bids, prior to the date of the enactment of this Act. The following questions and answers provide guidance for implementing and complying with the AIS requirements: Project Coverage 1)What classes of projects are covered by the AIS requirement? All treatment works projects funded by a CWSRF assistance agreement, and all public water system projects funded by a DWSRF assistance agreement, from the date of enactment through the end of Federal Fiscal Year 2014, are covered. The AIS requirements apply to the entirety of the project, no matter when construction begins or ends. Additionally, the AIS requirements apply to all parts of the project, no matter the source of funding. 2)Does the AIS requirement apply to nonpoint source projects or national estuary projects? No. Congress did not include an AIS requirement for nonpoint source and national estuary projects unless the project can also be classified as a ‘treatment works’ as defined by section 212 of the Clean Water Act. 3)Are any projects for the construction, alteration, maintenance, or repair of a public water system or treatment works excluded from the AIS requirement? Any project, whether a treatment works project or a public water system project, for which engineering plans and specifications were approved by the responsible state agency prior to January 17, 2014, is excluded from the AIS requirements. 4)What if the project does not have approved engineering plans and specifications but has signed an assistance agreement with a CWSRF or DWSRF program prior to January 17, 2014? The AIS requirements do not apply to any project for which an assistance agreement was signed prior to January 17, 2014. 4 5)What if the project does not have approved engineering plans and specifications, but bids were advertised prior to January 17, 2014 and an assistance agreement was signed after January 17, 2014? If the project does not require approved engineering plans and specifications, the bid advertisement date will count in lieu of the approval date for purposes of the exemption in section 436(f). 6)What if the assistance agreement that was signed prior to January 17, 2014, only funded a part of the overall project, where the remainder of the project will be funded later with another SRF loan? If the original assistance agreement funded any construction of the project, the date of the original assistance agreement counts for purposes of the exemption. If the original assistance agreement was only for planning and design, the date of that assistance agreement will count for purposes of the exemption only if there is a written commitment or expectation on the part of the assistance recipient to fund the remainder of the project with SRF funds. 7)What if the assistance agreement that was signed prior to January 17, 2014, funded the first phase of a multi-phase project, where the remaining phases will be funded by SRF assistance in the future? In such a case, the phases of the project will be considered a single project if all construction necessary to complete the building or work, regardless of the number of contracts or assistance agreements involved, are closely related in purpose, time and place. However, there are many situations in which major construction activities are clearly undertaken in phases that are distinct in purpose, time, or place. In the case of distinct phases, projects with engineering plans and specifications approval or assistance agreements signed prior to January 17, 2014 would be excluded from AIS requirements while those approved/signed on January 17, 2014, or later would be covered by the A IS requirements. 8)What if a project has split funding from a non-SRF source? Many States intend to fund projects with “split” funding, from the SRF program and from State or other programs. Based on the Act language in section 436, which requires that American iron and steel products be used in any project for the construction, alteration, maintenance, or repair of a public water system or treatment works receiving SRF funding between and including January 17, 2014 and September 30, 2014, any project that is funded in whole or in part with such funds must comply with the AIS requirement. A “project” consists of all construction necessary to complete the building or work regardless of the number of contracts or assistance agreements involved so long as all contracts and assistance agreements awarded are closely related in purpose, time and place. This precludes the intentional splitting of SRF projects into separate and smaller contracts or assistance agreements to avoid AIS coverage on some portion of a larger 5 project, particularly where the activities are integrally and proximately related to the whole. However, there are many situations in which major construction activities are clearly undertaken in separate phases that are distinct in purpose, time, or place, in which case, separate contracts or assistance agreement for SRF and State or other funding would carry separate requirements. 9)What about refinancing? If a project began construction, financed from a non-SRF source, prior to January 17, 2014, but is refinanced through an SRF assistance agreement executed on or after January 17, 2014 and prior to October 1, 2014, AIS requirements will apply to all construction that occurs on or after January 17, 2014, through completion of construction, unless, as is likely, engineering plans and specifications were approved by a responsible state agency prior to January 17, 2014. There is no retroactive application of the AIS requirements where a refinancing occurs for a project that has completed construction prior to January 17, 2014. 10)Do the AIS requirements apply to any other EPA programs, besides the SRF program, such as the Tribal Set-aside grants or grants to the Territories and DC? No, the AIS requirement only applies to funds made available by a State water pollution control revolving fund as authorized by title VI of the Federal Water Pollution Control Act (33 U.S.C. 1381 et seq.) or made available by a drinking water treatment revolving loan fund as authorized by section 1452 of the Safe Drinking Water Act (42 U.S.C. 300j–12) Covered Iron and Steel Products 11)What is an iron or steel product? For purposes of the CWSRF and DWSRF projects that must comply with the AIS requirement, an iron or steel product is one of the following made primarily of iron or steel that is permanently incorporated into the public water system or treatment works: Lined or unlined pipes or fittings; Manhole Covers; Municipal Castings (defined in more detail below); Hydrants; Tanks; Flanges; Pipe clamps and restraints; Valves; Structural steel (defined in more detail below); Reinforced precast concrete; and Construction materials (defined in more detail below). 6 12)What does the term ‘primarily iron or steel’ mean? ‘Primarily iron or steel’ places constraints on the list of products above. For one of the listed products to be considered subject to the AIS requirements, it must be made of greater than 50% iron or steel, measured by cost. The cost should be based on the material costs. 13)Can you provide an example of how to perform a cost determination? For example, the iron portion of a fire hydrant would likely be the bonnet, body and shoe, and the cost then would include the pouring and casting to create those components. The other material costs would include non-iron and steel internal workings of the fire hydrant (i.e., stem, coupling, valve, seals, etc). However, the assembly of the internal workings into the hydrant body would not be included in this cost calculation. If one of the listed products is not made primarily of iron or steel, United States (US) provenance is not required. An exception to this definition is reinforced precast concrete, which is addressed in a later question. 14)If a product is composed of more than 50% iron or steel, but is not listed in the above list of items, must the item be produced in the US? Alternatively, must the iron or steel in such a product be produced in the US? The answer to both question is no. Only items on the above list must be produced in the US. Additionally, the iron or steel in a non-listed item can be sourced from outside the US. 15)What is the definition of steel? Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. Metallic elements such as chromium, nickel, molybdenum, manganese, and silicon may be added during the melting of steel for the purpose of enhancing properties such as corrosion resistance, hardness, or strength. The definition of steel covers carbon steel, alloy steel, stainless steel, tool steel and other specialty steels. 16)What does ‘produced in the United States’ mean? Production in the United States of the iron or steel products used in the project requires that all manufacturing processes, including application of coatings, must take place in the United States, with the exception of metallurgical processes involving refinement of steel additives. All manufacturing processes includes processes such as melting, refining, forming, rolling, drawing, finishing, fabricating and coating. Further, if a domestic iron and steel product is taken out of the US for any part of the manufacturing process, it becomes foreign source material. However, raw materials such as iron ore, limestone and iron and steel scrap are not covered by the AIS requirement, and the 7 material(s), if any, being applied as a coating are similarly not covered. Non-iron or steel components of an iron and steel product may come from non-US sources. For example, for products such as valves and hydrants, the individual non-iron and steel components do not have to be of domestic origin. 17)Are the raw materials used in the production of iron or steel required to come from US sources? No. Raw materials, such as iron ore, limestone, scrap iron, and scrap steel, can come from non-US sources. 18)If an above listed item is primarily made of iron or steel, but is only at the construction site temporarily, must such an item be produced in the US? No. Only the above listed products made primarily of iron or steel, permanently incorporated into the project must be produced in the US. For example trench boxes, scaffolding or equipment, which are removed from the project site upon completion of the project, are not required to be made of U.S. Iron or Steel. 19)What is the definition of ‘municipal castings’? Municipal castings are cast iron or steel infrastructure products that are melted and cast. They typically provide access, protection, or housing for components incorporated into utility owned drinking water, storm water, wastewater, and surface infrastructure. They are typically made of grey or ductile iron, or steel. Examples of municipal castings are: Access Hatches; Ballast Screen; Benches (Iron or Steel); Bollards; Cast Bases; Cast Iron Hinged Hatches, Square and Rectangular; Cast Iron Riser Rings; Catch Basin Inlet; Cleanout/Monument Boxes; Construction Covers and Frames; Curb and Corner Guards; Curb Openings; Detectable Warning Plates; Downspout Shoes (Boot, Inlet); Drainage Grates, Frames and Curb Inlets; Inlets; Junction Boxes; Lampposts; Manhole Covers, Rings and Frames, Risers; 8 Meter Boxes; Service Boxes; Steel Hinged Hatches, Square and Rectangular; Steel Riser Rings; Trash receptacles; Tree Grates; Tree Guards; Trench Grates; and Valve Boxes, Covers and Risers. 20)What is ‘structural steel’? Structural steel is rolled flanged shapes, having at least one dimension of their cross-section three inches or greater, which are used in the construction of bridges, buildings, ships, railroad rolling stock, and for numerous other constructional purposes. Such shapes are designated as wide-flange shapes, standard I-beams, channels, angles, tees and zees. Other shapes include H-piles, sheet piling, tie plates, cross ties, and those for other special purposes. 21)What is a ‘construction material’ for purposes of the AIS requirement? Construction materials are those articles, materials, or supplies made primarily of iron and steel, that are permanently incorporated into the project, not including mechanical and/or electrical components, equipment and systems. Some of these products may overlap with what is also considered “structural steel”. This includes, but is not limited to, the following products: wire rod, bar, angles, concrete reinforcing bar, wire, wire cloth, wire rope and cables, tubing, framing, joists, trusses, fasteners (i.e., nuts and bolts), welding rods, decking, grating, railings, stairs, access ramps, fire escapes, ladders, wall panels, dome structures, roofing, ductwork, surface drains, cable hanging systems, manhole steps, fencing and fence tubing, guardrails, doors, and stationary screens. 22)What is not considered a ‘construction material’ for purposes of the AIS requirement? Mechanical and electrical components, equipment and systems are not considered construction materials. Mechanical equipment is typically that which has motorized parts and/or is powered by a motor. Electrical equipment is typically any machine powered b y electricity and includes components that are part of the electrical distribution system. The following examples (including their appurtenances necessary for their intended use and operation) are NOT considered construction materials: pumps, motors, gear reducers, drives (including variable frequency drives (VFDs)), electric/pneumatic/manual accessories used to operate valves (such as electric valve actuators), mixers, gates, motorized screens (such as traveling screens), blowers/aeration equipment, compressors, meters, sensors, controls and switches, supervisory control and 9 data acquisition (SCADA), membrane bioreactor systems, membrane filtration systems, filters, clarifiers and clarifier mechanisms, rakes, grinders, disinfection systems, presses (including belt presses), conveyors, cranes, HVAC (excluding ductwork), water heaters, heat exchangers, generators, cabinetry and housings (such as electrical boxes/enclosures), lighting fixtures, electrical conduit, emergency life systems, metal office furniture, shelving, laboratory equipment, analytical instrumentation, and dewatering equipment. 23)If the iron or steel is produced in the US, may other steps in the manufacturing process take place outside of the US, such as assembly? No. Production in the US of the iron or steel used in a listed product requires that all manufacturing processes must take place in the United States, except metallurgical processes involving refinement of steel additives. 24)What processes must occur in the US to be compliant with the AIS requirement for reinforced precast concrete? While reinforced precast concrete may not be at least 50% iron or steel, in this particular case, the reinforcing bar and wire must be produced in the US and meet the same standards as for any other iron or steel product. Additionally, the casting of the concrete product must take place in the US. The cement and other raw materials used in concrete production are not required to be of domestic origin. If the reinforced concrete is cast at the construction site, the reinforcing bar and wire are considered to be a construction material and must be produced in the US. Compliance 25)How should an assistance recipient document compliance with the AIS requirement? In order to ensure compliance with the AIS requirement, specific AIS contract language must be included in each contract, starting with the assistance agreement, all the way down to the purchase agreements. Sample language for assistance agreements and contracts can be found in Appendix 3 and 4. EPA recommends the use of a step certification process, similar to one used by the Federal Highway Administration. The step certification process is a method to ensure that producers adhere to the AIS requirement and assistance recipients can verify that products comply with the AIS requirement. The process also establishes accountability and better enables States to take enforcement actions against violators. Step certification creates a paper trail which documents the location of the manufacturing process involved with the production of steel and iron materials. A step certification is a process under which each handler (supplier, fabricator, manufacturer, 10 processor, etc) of the iron and steel products certifies that their step in the process was domestically performed. Each time a step in the manufacturing process takes place, the manufacturer delivers its work along with a certification of its origin. A certification can be quite simple. Typically, it includes the name of the manufacturer, the location of the manufacturing facility where the product or process took place (not its headquarters), a description of the product or item being delivered, and a signature by a manufacturer’s responsible party. Attached, as Appendix 5, are sample certifications. These certifications should be collected and maintained by assistance recipients. Alternatively, the final manufacturer that delivers the iron or steel product to the worksite, vendor, or contractor, may provide a certification asserting that all manufacturing processes occurred in the US. While this type of certification may be acceptable, it may not provide the same degree of assurance. Additional documentation may be needed if the certification is lacking important information. Step certification is the best practice. 26)How should a State ensure assistance recipients are complying with the AIS requirement? In order to ensure compliance with the AIS requirement, States SRF programs must include specific AIS contract language in the assistance agreement. Sample language for assistance agreements can be found in Appendix 3. States should also, as a best practice, conduct site visits of projects during construction and review documentation demonstrating proof of compliance which the assistance recipient has gathered. 27)What happens if a State or EPA finds a non-compliant iron and/or steel product permanently incorporated in the project? If a potentially non-compliant product is identified, the State should notify the assistance recipient of the apparent unauthorized use of the non-domestic component, including a proposed corrective action, and should be given the opportunity to reply. If unauthorized use is confirmed, the State can take one or more of the following actions: request a waiver where appropriate; require the removal of the non-domestic item; or withhold payment for all or part of the project. Only EPA can issue waivers to authorize the use of a non-domestic item. EPA may use remedies available to it under the Clean Water Act, the Safe Drinking Water Act, and 40 CFR part 31 grant regulations, in the event of a violation of a grant term and condition. It is recommended that the State work collaboratively with EPA to determine the appropriate corrective action, especially in cases where the State is the one who identifies the item in noncompliance or there is a disagreement with the assistance recipient. If fraud, waste, abuse, or any violation of the law is suspected, the Office of Inspector General (OIG) should be contacted immediately. The OIG can be reached at 1- 11 888-546-8740 or OIG_Hotline@epa.gov. More information can be found at this website: http://www.epa.gov/oig/hotline.htm. 28)How do international trade agreements affect the implementation of the AIS requirements? The AIS provision applies in a manner consistent with United States obligations under international agreements. Typically, these obligations only apply to direct procurement by the entities that are signatories to such agreements. In general, SRF assistance recipients are not signatories to such agreements, so these agreements have no impact on this AIS provision. In the few instances where such an agreement applies to a municipality, that municipality is under the obligation to determine its applicability and requirements and document the actions taken to comply for the State. Waiver Process The statute permits EPA to issue waivers for a case or category of cases where EPA finds (1) that applying these requirements would be inconsistent with the public interest; (2) iron and steel products are not produced in the US in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron and steel products produced in the US will increase the cost of the overall project by more than 25 percent. In order to implement the AIS requirements, EPA has developed an approach to allow for effective and efficient implementation of the waiver process to allow projects to proceed in a timely manner. The framework described below will allow States, on behalf of the assistance recipients, to apply for waivers of the AIS requirement directly to EPA Headquarters. Only waiver requests received from states will be considered. Pursuant to the Act, EPA has the responsibility to make findings as to the issuance of waivers to the AIS requirements. Definitions The following terms are critical to the interpretation and implementation of the AIS requirements and apply to the process described in this memorandum: Reasonably Available Quantity: The quantity of iron or steel products is available or will be available at the time needed and place needed, and in the proper form or specification as specified in the project plans and design. Satisfactory Quality: The quality of iron or steel products, as specified in the project plans and designs. Assistance Recipient: A borrower or grantee that receives funding from a State CWSRF or DWSRF program. 12 Step-By-Step Waiver Process Application by Assistance Recipient Each local entity that receives SRF water infrastructure financial assistance is required by section 436 of the Act to use American made iron and steel products in the construction of its project. However, the recipient may request a waiver. Until a waiver is granted by EPA, the AIS requirement stands, except as noted above with respect to municipalities covered by international agreements. The waiver process begins with the SRF assistance recipient. In order to fulfill the AIS requirement, the assistance recipient must in good faith design the project (where applicable) and solicit bids for construction with American made iron and steel products. It is essential that the assistance recipient include the AIS terms in any request for proposals or solicitations for bids, and in all contracts (see Appendix 3 for sample construction contract language). The assistance recipient may receive a waiver at any point before, during, or after the bid process, if one or more of three conditions is met: 1. Applying the American Iron and Steel requirements of the Act would be inconsistent with the public interest; 2. Iron and steel products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or 3. Inclusion of iron and steel products produced in the United States will increase the cost of the overall project by more than 25 percent. Proper and sufficient documentation must be provided by the assistance recipient. A checklist detailing the types of information required for a waiver to be processed is attached as Appendix 1. Additionally, it is strongly encouraged that assistance recipients hold pre-bid conferences with potential bidders. A pre-bid conference can help to identify iron and steel products needed to complete the project as described in the plans and specifications that may not be available from domestic sources. It may also identify the need to seek a waiver prior to bid, and can help inform the recipient on compliance options. In order to apply for a project waiver, the assistance recipient should email the request in the form of a Word document (.doc) to the State SRF program. It is strongl y recommended that the State designate a single person for all AIS communications. The State SRF designee will review the application for the waiver and determine whether the necessary information has been included. Once the waiver application is complete, the State designee will forward the application to either of two email addresses. For CWSRF waiver requests, please send the application to: cwsrfwaiver@epa.gov. For DWSRF waiver requests, please send the application to: dwsrfwaiver@epa.gov. 13 Evaluation by EPA After receiving an application for waiver of the AIS requirements, EPA Headquarters will publish the request on its website for 15 days and receive informal comment. EPA Headquarters will then use the checklist in Appendix 2 to determine whether the application properly and adequately documents and justifies the statutory basis cited for the waiver – that it is quantitatively and qualitatively sufficient – and to determine whether or not to grant the waiver. In the event that EPA finds that adequate documentation and justification has been submitted, the Administrator may grant a waiver to the assistance recipient. EPA will notify the State designee that a waiver request has been approved or denied as soon as such a decision has been made. Granting such a waiver is a three-step process: 1.Posting – After receiving an application for a waiver, EPA is required to publish the application and all material submitted with the application on EPA’s website for 15 days. During that period, the public will have the opportunity to review the request and provide informal comment to EPA. The website can be found at: https://water.epa.gov/grants_funding/aisrequirement.cfm 2.Evaluation – After receiving an application for waiver of the AIS requirements, EPA Headquarters will use the checklist in Appendix 2 to determine whether the application properly and adequately documents and justifies the statutory basis cited for the waiver – that it is quantitatively and qualitatively sufficient – and to determine whether or not to grant the waiver. 3.Signature of waiver approval by the Administrator or another agency official with delegated authority – As soon as the waiver is signed and dated, EPA will notify the State SRF program, and post the signed waiver on our website. The assistance recipient should keep a copy of the signed waiver in its project files. Public Interest Waivers EPA has the authority to issue public interest waivers. Evaluation of a public interest waiver request may be more complicated than that of other waiver requests so they may take more time than other waiver requests for a decision to be made. An example of a public interest waiver that might be issued could be for a community that has standardized on a particular type or manufacturer of a valve because of its performance to meet their specifications. Switching to an alternative valve may require staff to be trained on the new equipment and additional spare parts would need to be purchased and stocked, existing valves may need to be unnecessarily replaced, and portions of the system may need to be redesigned. Therefore, requiring the community to install an alternative valve would be inconsistent with public interest. EPA also has the authority to issue a public interest waiver that covers categories of products that might apply to all projects. 14 EPA reserves the right to issue national waivers that may apply to particular classes of assistance recipients, particular classes of projects, or particular categories of iron or steel products. EPA may develop national or (US geographic) regional categorical waivers through the identification of similar circumstances in the detailed justifications presented to EPA in a waiver request or requests. EPA may issue a national waiver based on policy decisions regarding the public’s interest or a determination that a particular item is not produced domestically in reasonably available quantities or of a sufficient quality. In such cases, EPA may determine it is necessary to issue a national waiver. If you have any questions concerning the contents of this memorandum, you may contact us, or have your staff contact Jordan Dorfman, Attorney-Advisor, State Revolving Fund Branch, Municipal Support Division, at dorfman.jordan@epa.gov or (202) 564-0614 or Kiri Anderer, Environmental Engineer, Infrastructure Branch, Drinking Water Protection Division, at anderer.kirsten@epa.gov or (202) 564-3134. Attachments Appendix 1: Information Checklist for Waiver Request The purpose of this checklist is to help ensure that all appropriate and necessary information is submitted to EPA. EPA recommends that States review this checklist carefully and provide all appropriate information to EPA. This checklist is for informational purposes only and does not need to be included as part of a waiver application. Items  Notes General •Waiver request includes the following information: — Description of the foreign and domestic construction materials — Unit of measure — Quantity — Price — Time of delivery or availability — Location of the construction project — Name and address of the proposed supplier — A detailed justification for the use of foreign construction materials •Waiver request was submitted according to the instructions in the memorandum •Assistance recipient made a good faith effort to solicit bids for domestic iron and steel products, as demonstrated by language in requests for proposals, contracts, and communications with the prime contractor Cost Waiver Requests •Waiver request includes the following information: — Comparison of overall cost of project with domestic iron and steel products to overall cost of project with foreign iron and steel products — Relevant excerpts from the bid documents used by the contractors to complete the comparison — Supporting documentation indicating that the contractor made a reasonable survey of the market, such as a description of the process for identifying suppliers and a list of contacted suppliers Availability Waiver Requests •Waiver request includes the following supporting documentation necessary to demonstrate the availability, quantity, and/or quality of the materials for which the waiver is requested: — Supplier information or pricing information from a reasonable number of domestic suppliers indicating availability/deliver y date for construction materials — Documentation of the assistance recipient’s efforts to find available domestic sources, such as a description of the process for identifying suppliers and a list of contacted suppliers. — Project schedule — Relevant excerpts from project plans, specifications, and permits indicating the required quantity and quality of construction materials •Waiver request includes a statement from the prime contractor and/or supplier confirming the non-availability of the domestic construction materials for which the waiver is sought •Has the State received other waiver requests for the materials described in this waiver request, for comparable projects? Appendix 2: HQ Review Checklist for Waiver Request Instructions: To be completed by EPA. Review all waiver requests using the questions in the checklist, and mark the appropriate box as Yes, No or N/A. Marks that fall inside the shaded boxes may be grounds for denying the waiver. If none of your review markings fall into a shaded box, the waiver is eligible for approval if it indicates that one or more of the following conditions applies to the domestic product for which the waiver is sought: 1. The iron and/or steel products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality. 2. The inclusion of iron and/or steel products produced in the United States will increase the cost of the overall project by more than 25 percent. Review Items Yes No N/A Comments Cost Waiver Requests •Does the waiver request include the following information? — Comparison of overall cost of project with domestic iron and steel products to overall cost of project with foreign iron and steel products — Relevant excerpts from the bid documents used by the contractors to complete the comparison — A sufficient number of bid documents or pricing information from domestic sources to constitute a reasonable survey of the market •Does the Total Domestic Project exceed the Total Foreign Project Cost by more than 25%? Availability Waiver Requests •Does the waiver request include supporting documentation sufficient to show the availability, quantity, and/or quality of the iron and/or steel product for which the waiver is requested? — Supplier information or other documentation indicating availability/delivery date for materials — Project schedule — Relevant excerpts from project plans, specifications, and permits indicating the required quantity and quality of materials •Does supporting documentation provide sufficient evidence that the contractors made a reasonable effort to locate domestic suppliers of materials, such as a description of the process for identifying suppliers and a list of contacted suppliers? •Based on the materials delivery/availability date indicated in the supporting documentation, will the materials be unavailable when they are needed according to the project schedule? (By item, list schedule date and domestic delivery quote date or other relevant information) •Is EPA aware of any other evidence indicating the non-availability of the materials for which the waiver is requested? Examples include: — Multiple waiver requests for the materials described in this waiver request, for comparable projects in the same State — Multiple waiver requests for the materials described in this waiver request, for comparable projects in other States — Correspondence with construction trade associations indicating the non-availability of the materials •Are the available domestic materials indicated in the bid documents of inadequate quality compared those required by the project plans, specifications, and/or permits? 16 Appendix 3: Example Loan Agreement Language ALL ASSISTANCE AGREEMENT MUST HAVE A CLAUSE REQUIRING COMPLIANCE WITH THE AIS REQUIREMENT. THIS IS AN EXAMPLE OF WHAT COULD BE INCLUDED IN SRF ASSISTANCE AGREEMENTS. EPA MAKES NO CLAIMS REGARDING THE LEGALITY OF THIS CLAUSE WITH RESPECT TO STATE LAW: Comply with all federal requirements applicable to the Loan (including those imposed by the 2014 Appropriations Act and related SRF Policy Guidelines) which the Participant understands includes, among other, requirements that all of the iron and steel products used in the Project are to be produced in the United States (“American Iron and Steel Requirement”) unless (i) the Participant has requested and obtained a waiver from the Agency pertaining to the Project or (ii) the Finance Authority has otherwise advised the Participant in writing that the American Iron and Steel Requirement is not applicable to the Project. Comply with all record keeping and reporting requirements under the Clean Water Act/Safe Drinking Water Act, including any reports required by a Federal agency or the Finance Authority such as performance indicators of program deliverables, information on costs and project progress. The Participant understands that (i) each contract and subcontract related to the Project is subject to audit by appropriate federal and state entities and (ii) failure to comply with the Clean Water Act/Safe Drinking Water Act and this Agreement may be a default hereunder that results in a repayment of the Loan in advance of the maturity of the Bonds and/or other remedial actions. 18 Appendix 4: Sample Construction Contract Language ALL CONTRACTS MUST HAVE A CLAUSE REQUIRING COMPLIANCE WITH THE AIS REQUIREMENT. THIS IS AN EXAMPLE OF WHAT COULD BE INCLUDED IN ALL CONTRACTS IN PROJECTS THAT USE SRF FUNDS. EPA MAKES NO CLAIMS REGARDING THE LEGALITY OF THIS CLAUSE WITH RESPECT TO STATE OR LOCAL LAW: The Contractor acknowledges to and for the benefit of the City of (“Purchaser”) and the (the “State”) that it understands the goods and services under this Agreement are being funded with monies made available by the Clean Water State Revolving Fund and/or Drinking Water State Revolving Fund that have statutory requirements commonly known as “American Iron and Steel;” that requires all of the iron and steel products used in the project to be produced in the United States (“American Iron and Steel Requirement”) including iron and steel products provided by the Contactor pursuant to this Agreement. The Contractor hereby represents and warrants to and for the benefit of the Purchaser and the State that (a) the Contractor has reviewed and understands the American Iron and Steel Requirement, (b) all of the iron and steel products used in the project will be and/or have been produced in the United States in a manner that complies with the American Iron and Steel Requirement, unless a waiver of the requirement is approved, and (c) the Contractor will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support a waiver of the American Iron and Steel Requirement, as may be requested by the Purchaser or the State. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by the Contractor shall permit the Purchaser or State to recover as damages against the Contractor any loss, expense, or cost (including without limitation attorney’s fees) incurred by the Purchaser or State resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part, from the State or any damages owed to the State by the Purchaser). While the Contractor has no direct contractual privity with the State, as a lender to the Purchaser for the funding of its project, the Purchaser and the Contractor agree that the State is a third-party beneficiary and neither this paragraph (nor any other provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the State. 19 Appendix 5: Sample Certifications The following information is provided as a sample letter of step certification for AIS compliance. Documentation must be provided on company letterhead. Date Company Name Company Address City, State Zip Subject: American Iron and Steel Step Certification for Project (XXXXXXXXXX) I, (company representative), certify that the (melting, bending, coating, galvanizing, cutting, etc.) process for (manufacturing or fabricating) the following products and/or materials shipped or provided for the subject project is in full compliance with the American Iron and Steel requirement as mandated in EPA’s State Revolving Fund Programs. Item, Products and/or Materials: 1. Xxxx 2. Xxxx 3. Xxxx Such process took place at the following location: If any of the above compliance statements change while providing material to this project we will immediately notify the prime contractor and the engineer. Signed by company representative 20 The following information is provided as a sample letter of certification for AIS compliance. Documentation must be provided on company letterhead. Date Company Name Company Address City, State Zip Subject: American Iron and Steel Certification for Project (XXXXXXXXXX) I, (company representative), certify that the following products and/or materials shipped/provided to the subject project are in full compliance with the American Iron and Steel requirement as mandated in EPA’s State Revolving Fund Programs. Item, Products and/or Materials: 1. Xxxx 2. Xxxx 3. Xxxx Such process took place at the following location: If any of the above compliance statements change while providing material to this project we will immediately notify the prime contractor and the engineer. Signed by company representative 4� PRO UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF WATER DECISION MEMORANDUM SUBJECT: De Minimis Waiver of Section 436 of P.L. 113-76, Consolidated Appropriations Act (CAA), 2014 FROM: Nancy K. Stoner Acting Assistant Administrator The EPA is hereby granting a nationwide waiver pursuant to the "American Iron and Steel (AIS)" requirements of P.L. 113-76, Consolidated Appropriations Act, 2014 (Act), section 436 under the authority of Section 436(b)(1) (public interest waiver) for de minimis incidental components of eligible water infrastructure projects. This action permits the use of products when they occur in de minimis incidental components of such projects funded by the Act that may otherwise be prohibited under section 436(a). Funds used for such de minimis incidental components cumulatively may comprise no more than a total of 5 percent of the total cost of the materials used in and incorporated into a project; the cost of an individual item may not exceed 1 percent of the total cost of the materials used in and incorporated into a project. P.L. 113-76, Consolidated Appropriations Act, 2014 (Act), includes an "American Iron and Steel" (AIS) requirement in section 436 that requires Clean Water State Revolving Loan Fund (CWSRF) and Drinking Water State Revolving Loan Fund (DWSRF) assistance recipients to use specific domestic iron and steel products that are produced in the United States if the project is funded through an assistance agreement executed beginning January 17, 2014 (enactment of the Act), through the end of Fiscal Year 2014, unless the agency determines it necessary to waive this requirement based on findings set forth in Section 436(b). The Act states, "[the requirements] shall not apply in any case or category of cases in which the Administrator of the Environmental Protection Agency... finds that— (1) applying subsection (a) would be inconsistent with the public interest" 436(b)(1). In implementing section 436 of the Act, the EPA must ensure that the section's requirements are applied consistent with congressional intent in adopting this section and in the broader context of the purposes, objectives, and other provisions applicable to projects funded under the SRF. Water infrastructure projects typically contain a relatively small number of high -cost components incorporated into the project. In bid solicitations for a project, these high -cost components are generally described in detail via project specific technical specifications. For these major components, utility owners and their contractors are generally familiar with the conditions of availability, the potential alternatives for each detailed specification, the approximate cost, and the country of manufacture of the available components. Internet Address (URA) • http://www.epa.gov Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Postconsumer. Process Chlorine Free Recycled Paper Every water infrastructure project also involves the use of thousands of miscellaneous, generally low-cost components that are essential for, but incidental to, the construction and are incorporated into the physical structure of the project. For many of these incidental components, the country of manufacture and the availability of alternatives is not always readily or reasonably identifiable prior to procurement in the normal course of business; for other incidental components, the country of manufacture may be known but the miscellaneous character in conjunction with the low cost, individually and (in total) as typically procured in bulk, mark them as properly incidental. Examples of incidental components could include small washers, screws, fasteners (i.e., nuts and bolts), miscellaneous wire, corner bead, ancillary tube, etc. Examples of items that are clearly not incidental include significant process fittings (i.e., tees, elbows, flanges, and brackets), distribution system fittings and valves, force main valves, pipes for sewer collection and/or water distribution, treatment and storage tanks, large structural support structures, etc. The EPA undertook multiple inquiries to identify the approximate scope of de minimis incidental components within water infrastructure projects during the implementation of the American Reinvestment and Recovery Act (ARRA) and its requirements (Buy American provisions, specifically). The inquiries and research conducted in 2009 applies suitably for the case today. In 2009, the EPA consulted informally with many major associations representing equipment manufacturers and suppliers, construction contractors, consulting engineers, and water and wastewater utilities, and performed targeted interviews with several well -established water infrastructure contractors and firms who work in a variety of project sizes, and regional and demographic settings to ask the following questions: • What percentage of total project costs were consumables or incidental costs? • What percentage of materials costs were consumables or incidental costs? • Did these percentages vary by type of project (drinking water vs. wastewater treatment plant vs. pipe)? The responses were consistent across the variety of settings and project types, and indicated that the percentage of total costs for drinking water or wastewater infrastructure projects represented by these incidental components is generally not in excess of 5 percent of the total cost of the materials used in and incorporated into a project. In drafting this waiver, the EPA has considered the de minimis proportion of project costs generally represented by each individual type of these incidental components within the many types of such components comprising those percentages, the fact that these types of incidental components are obtained by contractors in many different ways from many different sources, and the disproportionate cost and delay that would be imposed on projects if the EPA did not issue this waiver. Assistance recipients who wish to use this waiver should in consultation with their contractors determine the items to be covered by this waiver and must retain relevant documentation (i.e., invoices) as to those items in their project files. If you have any questions concerning the contents of this memorandum, please contact Timothy Connor, Chemical Engineer, Municipal Support Division, at connor.timothy@epa.gov or (202) 566-1059 or Kirsten Anderer, Environmental Engineer, Drinking Water Protection Division, at anderer.kirsten@epa.gov or (202) 564-3134. Issued on: Approved by: APR 15 2014 Nancy K. Ston�r Acting Assista t Administrator UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 FEB 18 2015 OFFICE OF WATER DECISION MEMORANDUM SUBJECT: National Product Waiver for Pig Iron and Direct Reduced Iron for State Revolving Fund Projects FROM: KennethJ. Kopocis Deputy Assistant Administrator The U.S. Environmental Protection Agency is hereby granting a national product waiver pursuant to the "American Iron and Steel" provisions of the Clean Water Act and Public Law 113-235, the "Consolidated and Further Continuing Appropriations Act, 20 15," for certain intermediate goods used in the manufacture of iron and steel products. 1 This waiver permits the use of pig iron and direct reduced iron manufactured outside of the United States in domestic manufacturing processes for iron and steel products used in projects funded by a Clean Water or Drinking Water State Revolving Fund that may otherwise be prohibited absent this waiver. The waiver is retroactive and thus also applies to the use of non-domestic pig iron and direct reduced iron before the signature date. Background: Pig iron and direct reduced iron are intermediate products of iron and steel manufacturing used as material feed sources in iron and steel foundries and steel mills. Pig iron is a product of iron ore smelting in a blast furnace. It is made from molten iron, which has been cast in the shape of "pigs" as it comes from the blast furnace. Direct reduced iron ore is produced from iron ore, pellets or fines, which are reduced in a solid state using natural gas. Hot briquetted iron, or HBI, is a compacted form of direct reduced iron with enhanced physical characteristics fo r shipment and storage. Coverage: This waiver permits the use of iron and steel products that were manufactured using non-domestic pig iron and direct reduced iron in projects that receive funds from either the CWSRF or DWSRF. Any project that received or will receive funds from the CWSRF or DWSRF beginning with the enactment of P.L. 113-76, the "Consolidated Appropriations Act, 2014," may use this waiver for iron and steel that use these intermediate goods. Rationale: The AIS provisions require CWSRF and DWSRF assistance recipients to use specific domestic iron and steel products that are produced in the United States if the project is funded 1Absent a waiver, all treatment works and drinking water facilities that are constructed, in whole or in part, with funds from the CWSRF or the DWSRF, must use American made iron and steel. EPA is allowed under certain circumstances to provide waivers of this requirement. Internet Address (URL) • hltp//www epa gov Recycled/Recyclable • Pnnted w•th Vegetable Od Based Inks on 100% Postconsumer Process Chlonne Free Recyded Paper through an SRF assistance agreement unless the Agency determines that it is necessary to waive this requirement. EPA has authority to issue waivers in accordance with Section 608( c )(2) of the Clean Water Act and the AIS provisions extended by P.L. 113-235, the "Consoli dated and Further Continuing Appropriations Act, 20 15," under the authority of Section 424(b )(2). The provision states in part: "[the requirements] shall not apply in any case or category of cases in which the Administrator of the Environmental Protection Agency ...finds that -iron and steel products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality." Product manufacturers and suppliers informed EPA of concerns about the sufficient availability of domestically produced pig iron and direct reduced iron. The iron and steel products produced at steel mills and foundries that use non-domestic intermediate goods are not compliant with the AIS requirements. AIS compliant products used at water and wastewater projects could be in extremely short supply should a waiver of the intermediate goods not be available. EPA conducted extensive market research on the supply of pig iron and direct reduced iron and found that domestic supplies of these goods sold on the open market are generally not available. There are three major types of facilities that manufacture iron and steel finished products: basic oxygen furnace steel mills (BOF), electric arc furnace steel mills (EAF) and foundries. BOF steel mills undertake both iron making and steel making, as molten iron from the blast furnace is the required feedstock for BOF steel production. EAF steel mills and foundr ies, on the other hand, use iron and steel scrap as their principal feedstock, which must be supplemented with the use of pig iron and/or direct reduced iron in their manufacturing processes to achieve required steel qualities. EPA market research has shown that BOF steel mills are able to produce adequate amounts of pig iron to meet their own demands, but these mills use the bulk of this production for their own processes and do not sell pig iron on the open market in sufficient quantities. At this time, there is only one producer of direct reduced iron operating in the U.S. and the company uses the output internally for EAF steel production. Therefore, EAF steel mills and foundries must import pig iron and direct reduced iron to meet their iron needs. At least 60 percent of the nation's steel production comes from the EAF steel mills that use non- domestic pig iron and direct reduced iron in their manufacturing processes. Consequently, the majority of steel used in water and wastewater projects would not be compliant with the AIS requirements absent this waiver. Similarly, most, if not all, of the iron foundries in the United States use non-domestic pig iron and direct reduced iron to produce cast and ductile iron products used by water and wastewater projects. Therefore, the majority of iron used in water and wastewater projects would not be compliant with the AIS requirements absent this waiver. Hence, EPA is hereby providing a nationwide waiver pursuant to AIS requirements to cover the non-domestic intermediate iron goods used in the manufacture of iron and/or steel components and products for water and wastewater projects. Public Comments: EPA requested comments on the draft national waiver and a majority of the comments received were supportive of a national waiver. The commenters in support of the waiver agreed with the .Agency's conclusion that pig iron and direct reduced iron are not 2 produced in the United States in sufficient and reasonably available quantities to meet the needs of many domestic foundries and steel mills. These commenters believe that the waiver will ensure that pig iron and direct reduced iron are treated similarly to raw material inputs in iron and steel manufacturing and by doing so the EPA will preserve the viability of the AIS requirement. These commenters also state that the waiver would treat pig iron and direct reduced iron in a manner consistent with the implementation of other similar federal laws such as the Federal Highway Administration's Buy America requirement. The FHWA issued a similar nationwide waiver of the Buy America requirements in 1995 for pig iron and processed, pelletized and reduced iron ore. A few commenters challenged the Agency's issuance of a nationwide waiver of the A IS requirements for pig iron and direct reduced iron. These commenters disagreed with the Agency's interpretation of the AIS requirements and stated that raw materials used in iron and steel production must also be produced in the United States. In addition, the commenters questioned whether the Agency could exempt iron and steel products that are composed of non- domestic materials. The statutory language lists the categories of products that are considered "iron and steel products." The statutory requirements include provisions that allow the EPA to issue waiv ers under defined conditions, including the case where iron and steel products are not produced in the United States in sufficient and reasonably available quantities. The Agency's market research, supported by comments from manufacturers, has shown that pig iron and direct reduced iron are not produced in the United States in sufficient and reasonably available quantities. Therefore the Agency is-authorized to issue a waiver for iron and steel products composed of non-domestic pig iron and direct reduc ed iron. Legal Authority: Legal authority for the AIS requirements for CWSRF projects is included under Sec. 608(c)(2) ofthe Clean Water Act and previously under P.L. 113-76, the "Consolidated Appropriations Act, 2014," under the authority of Section 436(b)(2). Legal authority for the AIS requirements for DWSRF projects is included under P.L. 113-235, the "Consolidated and Further Continuing Appropriations Act, 20 15," under the authority of Section 424(b )(2) and also previously under P.L. 113-76. This waiver will continue in force for DWSRF projects under any continuing resolutions or statutes that use similar language as in Section 424 of the "Consolidated and Further Continuing Appropriations Act, 2015." If you have questions concerning the contents of this memorandum, please contact Timothy Connor, Chemical Engineer, Municipal Support Division, at connor.timothy@epa.gov or (202) 566-1059 or Kiri Anderer, Environmental Engineer, Drinking Water Protection Division, at anderer.kirsten@epa.gov or (202) 564-3134. 3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHI NGTON , D.C . 20460 OCJ 2 7 2015 DECISION MEMORANDUM OFFICE OF WA rm SUBJECT: Nati o nal Product Waiver for Minor Components w ithin Iron and S teel Products (with Cost Ceiling) for State Revolving fund Projects FROM: Kenneth J. Kopocis 1< _fi._ f Kr Deputy Assistant Administrator The U.S . Environmental Protection Agency is hereby grantin g a na ti ona l product waive r pursuant to the ·'American Iron and Steel" provisions of the Clean Water Act a nd Public Law 113-235, the "Consolidated and Further Continuing Appropriatio ns Act, 20 15 ," (hereinafter referred to as "the Acts") for minor components wi thin a product und e r an establi shed cost ceiling.1 T he wa iver w ill permit projects fu nded by the C lean Water State Revo lv in g Fund or Drinking Water State Revolving Fund to use non-domestically produced miscellaneous minor components with in an otherwise domestical ly produced iron and steel product for up to 5 percent of the total material cost of the product. These products could be prohibited absent this waiver. This waiver is retroactive, and so also appli es to products purchased before the signature date of thi s waiver. C o verage : The items covered by this waiver inc lud e miscellaneous minor components with in iron and s tee l products as defined in the /\IS provisions of the Acts. T he specific minor components in covered iron and steel products will vary by product a nd m a nufacturer. Purs ua nt to this waiver, non-domestically produced miscellaneous minor components comprising up to 5 percent of the total material cost of an otherwise domestically produced iron and s teel product may be used . T hi s waiver does not exempt the whole product from the A IS requirements, and the primary iron or steel components of the product must be produced domestically. Unless subject to a separate waiver, a ll other iron and stee l compone nts in these products must still meet the A IS requirements. Valves and hydrants are also subject to the cost ceiling requirements described here. This waiver s upersedes th e E PA 's previous guidance issued on May 30, 20 14 , (Question 1) re lated to mino r components in valves and hydrants . T he coverage of this waiver is different from that of the existing national de m inim is waiver. While the national de minimis waiver covers e ntire products (when those products are generall y of low cost and incidental to the construction of the project), this waiver covers mino r components w ithin an iron and s teel product. In addition, the na ti onal de minimis \Naiver is inte nd ed for assistance recipients to use for their projects, w hil e this minor components waiver is intended to allow manufacturers to ce r ti fy that their products comply w ith the A IS requirements. 1 Abse nt a waiver, al l treatment work s and drinking water faci l ities that are constructed, in whole or i n part , with fund s from th e C WSRF or th e DWSRF, mu st use Ame ri can made iron and stee l. The E PA i s allowed under certain c ircum stanc es to provide waivers of this requirement. Internet Address (URL)· http //www epa gov Recycled/Re cyclab le ·Printed with Vegetable 011 Based Inks on 100% Postconsumer. Process Chlorin e Free Recycled Paper Rationale: The A TS provisions require recipient s of CWSRF and DWSRF assistance to use specific domestically-produced iron ahd steel products in t hei r project, unless the Agency determines it is necessary to waive this requiren~ent. T he EPA ha s authority to issue waivers in accordance with Section 608(c)(J) of the C lean Wat'er Act and the A IS provisions extended by P .L. 113-235 , the "Consol id ated and Furl her Conti nuin g Appr9~priations Act, 20 I 5," unde r the a uth ority of Section 424(b )(1 ). The provisions state in part: ''[the requirements] shaWnot apply in a ny case or category of cases in which the A dministrator of the E n v iro nmental Prot ~ction Agency ... finds that. .. apply ing s ubsection (a) would be inconsistent with the public interest." ' Many product manufacturers and s uppliers iden tified s ignifica nt compl ian ce chall e nges absent this waiver. Water and wastewater utiliti es are generally unable to o bt a in a ra nge of AIS compliant iron and s teel products (s uc h as va lves, hydrants and pipe restraints) that contain l 00 percent domestic components. The m a nu fact urers s tated that th e ori g in of a significant proportion of very s m a ll minor components cannot b e reliably tracked or even discerned. They provided examples of product lin es that wou ld nee d duplicative inventori es of extremely low-cost miscellaneous minor components in o rd e r to s uppl y A fS compli a nt products . Manufacturers a lso raised concerns related to chall enges of inventory trackin g, inventory control and excessive cos ts associated with duplicative in ventory n eeded to s uppl y utiliti es with essential domestic products. The E PA concl udes that r equiring manufacturers a nd s up pli e rs to overcome the challenges identified above wou ld be inconsistent w ith the publi c's interes t. In order to balance t he rel iab ility, availability and max imum s upply of domestical ly produced iron and steel products, it is acceptab le for a manufacturer to incorporate a relatively small proportio n of miscellaneous minor components of no n-domestic or unknown o ri g in w ithin an otherwise domesticall y manufactured product. Legal A uth o rit y : Legal authority fo r the A IS requirements fo r CWSRF projects is included und er Sec. 608(c)(l) of the C lean Water Act a nd previousl y under P .L. 11 3-76, "Consolidated Appropri ations Act, 20 14 ," under the authority of Section 436(b)(I ). Legal a utho ri ty for the A IS req uirements fo r DWSRF projects is included und er P.L. I 13-235 , the "Consolid ated and Further Continuing Appropri at ions Act, 2015'', und e r the authority of Section 424(b)(l ) a nd a lso p reviously under P .L. 11 3-76. T hi s wa ive r wi ll continue in force for DWSRF projects und e r a ny continuin g resolutions or s tatutes that use s imil ar language as Sectio n 424 of th e "Conso li dated and Further Conti nuing Appropriations Act , 20 15." If yo u have a ny questions concerning the contents of this memorandum, pl ease contact Timothy Connor, Chemical Engineer, Municipal Support Divisio n, at conno r.timothy@ epa.gov or (202) 566-1059 o r Kiri Anderer, E nv ironme nta l Engineer, Drinking Wate r Protection Division, at ander er.k ir s ten@epa.gov or (202) 564-3 I 34. American Iron and Steel Certification The Contractor acknowledges to and for the benefit of _______________________ and the State of Missouri that it understands the goods and services under this Agreement are being funded with monies made available by the Clean Water State Revolving Fund and/or Drinking Water State Revolving Fund that have statutory requirements (see attached) commonly known as “American Iron and Steel;” that requires all of the iron and steel products used in the project to be produced in the United States (“American Iron and Steel Requirement”) including iron and steel products provided by the Contactor pursuant to this Agreement. The Contractor hereby represents and warrants to and for the benefit of the Purchaser and the State that (a) the Contractor has reviewed and understands the American Iron and Steel Requirement, (b) all of the iron and steel products used in the project will be and/or have been produced in the United States in a manner that complies with the American Iron and Steel Requirement, unless a waiver of the requirement is approved, and (c) the Contractor will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support a waiver of the American Iron and Steel Requirement, as may be requested by the Purchaser or the State. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by the Contractor shall permit the Purchaser or State to recover as damages against the Contractor any loss, expense, or cost (including without limitation attorney’s fees) incurred b y the Purchaser or State resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part, from the State or any damages owed to the State by the Purchaser). While the Contractor has no direct contractual privity with the State, as a lender to the Purchaser for the funding of its project, the Purchaser and the Contractor agree that the State is a third-party beneficiary and neither this paragraph (nor any other provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the State. Name of Contracting Firm Signature Date Name and Title of Signer (Please type) Davis Bacon Act Requirements Pursuant to the Federal Appropriations Act, all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to the Appropriations Act shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code. Additional guidance can be located at DOL’s web site at https://www.wdol.gov/index.aspx 1.The Davis-Bacon (DB) prevailing wage requirements apply to the construction, alteration, and repair activity of infrastructure, including all construction, alteration and repair activity involving waste water or drinking water treatment plants is subject to DB. Prime contractors and subcontractors must follow the wage determination incorporated into the prime contract. 2.Contract and Subcontract provisions. (a) Minimum wages. (1)All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3) ), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, 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)(2) 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. (2) Any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The EPA award official shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (i)The work to be performed by the classification requested is not performed by a classification in the wage determination; and (ii) The classification is utilized in the area by the construction industry; and (iii)The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (3)If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the funding recipient(s) agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the funding recipient (s) to the MDNR. The MDNR will transmit the report, to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the MDNR or will notify the MDNR within the 30-day period that additional time is necessary. (4)In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the and the funding recipient(s) do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the funding recipient shall refer the questions, including the views of all interested parties and the recommendation of the MDNR, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (5)The wage rate (including fringe benefits where appropriate) 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. (6)Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (7)If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis- Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (b) Withholding. (1)The funding recipient(s), shall upon written request of the EPA Award Official or an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (c) Payrolls and basic records. (1)Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (2)The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to the funding recipient, that is, the entity that receives the grant or loan from the MDNR. As to each payroll copy received, the funding recipient shall provide written confirmation in a form satisfactory to the MDNR indicating whether or not the project is in compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies for the specified week. The payrolls shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on the weekly payrolls. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the funding recipient (s) for transmission to the MDNR or EPA if requested by EPA, the MDNR, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the funding recipient (s). (3)Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (i)That the payroll for the payroll period contains the information required to be provided under § 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; (ii)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; (iii)That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (4)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 (c)(3) of this section. (5)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. (6)The contractor or subcontractor shall make the records required under paragraph (c)(1) of this section available for inspection, copying, or transcription by authorized representatives of the MDNR, EPA or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency or State may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (d)Apprentices and trainees. (1)Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (2)Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (e)Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. (f) 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. (g) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the EPA determines may by appropriate, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. (h)Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (i)Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. (j)Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and funding recipient(s), MDNR, EPA, the U.S. Department of Labor, or the employees or their representatives. (k)Certification of eligibility. (1)By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (2)No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (3) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. 3. Contract Provision for Contracts in Excess of $100,000. (a)Contract Work Hours and Safety Standards Act. The following clauses shall be inserted in full in any contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. As used in this paragraph, the terms laborers and mechanics include watchmen and guards. (1)Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2)Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (a)(1) of this section the contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (a)(1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (a)(1) of this section. (3)Withholding for unpaid wages and liquidated damages. The funding recipient, upon written request of the EPA Award Official or an authorized representative of the Department of Labor, shall withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section. (4)Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (a)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (a)(1) through (4) of this section. (b) In any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other statutes cited in 29 CFR 5.1, the contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. Further, the records to be maintained under this paragraph shall be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the MDNR and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview employees during working hours on the job. 4. Compliance Verification (a) The funding recipient shall periodically interview a sufficient number of employees entitled to DB prevailing wages (covered employees) to verify that contractors or subcontractors are paying the appropriate wage rates. As provided in 29 CFR 5.6(a)(6), all interviews must be conducted in confidence. (b)The funding recipient must conduct interviews with a representative group of covered employees within two weeks of each contractor or subcontractor’s submission of its initial weekly payroll data and two weeks prior to the estimated completion date for the contract or subcontract. Funding recipients must conduct more frequent interviews if the initial interviews or other information indicates that there is a risk that the contractor or subcontractor is not complying with DB. Funding recipients shall immediately conduct necessary interviews in response to an alleged violation of the prevailing wage requirements. All interviews shall be conducted in confidence. (c)The funding recipient shall periodically conduct spot checks of a representative sample of weekly payroll data to verify that contractors or subcontractors are paying the appropriate wage rates. The funding recipient shall establish and follow a spot check schedule based on its assessment of the risks of noncompliance with DB posed by contractors or subcontractors and the duration of the contract or subcontract. At a minimum, the funding recipient must spot check payroll data within two weeks of each contractor or subcontractor’s submission of its initial payroll data and two weeks prior to the completion date the contract or subcontract. Funding recipients must conduct more frequent spot checks if the initial spot check or other information indicates that there is a risk that the contractor or subcontractor is not complying with DB . In addition, during the examinations the funding recipient shall verify evidence of fringe benefit plans and payments there under by contractors and subcontractors who claim credit for fringe benefit contributions. (d)The funding recipient shall periodically review contractors and subcontractors use of apprentices and trainees to verify registration and certification with respect to apprenticeship and training programs approved by either the U.S Department of Labor or a state, as appropriate, and that contractors and subcontractors are not using disproportionate numbers of, laborers, trainees and apprentices. These reviews shall be conducted in accordance with the schedules for spot checks and interviews described in Item 5(b) and (c) above. (e)Funding recipients must immediately report potential violations of the DB prevailing wage requirements to the EPA DB contact listed above and to the appropriate DOL Wage and Hour District Office listed at http://www.dol.gov/esa/contacts/whd/america2.htm. CW/DW SRF P&S E Recipient Notice Davis-Bacon Act Requirements Funding Recipient Requirements If the funding recipient encounters a unique situation at a site that presents uncertainties regarding Davis Bacon (DB) applicability, the funding recipient must discuss the situation with the MDNR before authorizing work on that site. The funding recipients shall obtain the wage determination for the locality in which a covered activity subject to DB will take place prior to issuing requests for bids, proposals, quotes or other methods for soliciting contracts (solicitation) for activities subject to DB. These wage determinations shall be incorporated into solicitations and any subsequent contracts. The funding recipients may obtain wage determinations from the U.S. Department of Labor’s web site, www.wdol.gov. While the solicitation remains open, the funding recipient shall monitor www.wdol.gov. on a weekly basis to ensure that the wage determination contained in the solicitation remains current. The funding recipients shall amend the solicitation if DOL issues a modification more than 10 days prior to the closing date (i.e. bid opening) for the solicitation. If DOL modifies or supersedes the applicable wage determination less than 10 days prior to the closing date, the funding recipients may request a finding from the MDNR that there is not a reasonable time to notify interested contractors of the modification of the wage determination. The MDNR will provide a report of its findings to the funding recipient. If the funding recipient does not award the contract within 90 days of the closure of the solicitation, any modifications or supersedes DOL makes to the wage determination contained in the solicitation shall be effective unless the MDNR, at the request of the funding recipient, obtains an extension of the 90 day period from DOL pursuant to 29 CFR 1.6(c)(3)(iv). The funding recipient shall monitor www.wdol.gov on a weekly basis if it does not award the contract within 90 days of closure of the solicitation to ensure that wage determinations contained in the solicitation remain current. If the funding recipient carries out an activity subject to DB by issuing a task order, work assignment or similar instrument to an existing contractor (ordering instrument) rather than by publishing a solicitation, the funding recipient shall insert the appropriate DOL wage determination from www.wdol.gov into the ordering instrument. Funding recipients shall review all subcontracts subject to DB entered into by prime contractors to verify that the prime contractor has required its subcontractors to include the applicable wage determinations. As provided in 29 CFR 1.6(f), DOL may issue a revised wage determination applicable to a funding recipient’s contract after the award of a contract or the issuance of an ordering instrument if DOL determines that the funding recipient has failed to incorporate a wage determination or has used a wage determination that clearly does not apply to the contract or ordering instrument. If this occurs, the funding recipient shall either terminate the contract or CW/DW SRF P&S E Recipient Notice ordering instrument and issue a revised solicitation or ordering instrument or incorporate DOL’s wage determination retroactive to the beginning of the contract or ordering instrument by change order. The funding recipient’s contractor must be compensated for any increases in wages resulting from the use of DOL’s revised wage determination. The funding recipient(s) shall 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 § 5.1, the following clauses: 1)The funding recipient shall periodically interview a sufficient number of employees entitled to DB prevailing wages (covered employees) to verify that contractors or subcontractors are paying the appropriate wage rates. As provided in 29 CFR 5.6(a)(6), all interviews must be conducted in confidence. The funding recipient must use Standard Form 1445 or equivalent documentation to memorialize the interviews. Copies of the SF 1445 are available from EPA on request. 2)The funding recipient shall establish and follow an interview schedule based on its assessment of the risks of noncompliance with DB posed by contractors or subcontractors and the duration of the contract or subcontract. At a minimum, the funding recipient must conduct interviews with a representative group of covered employees within two weeks of each contractor or subcontractor’s submission of its initial weekly payroll data and two weeks prior to the estimated completion date for the contract or subcontract. The funding recipients must conduct more frequent interviews if the initial interviews or other information indicates that there is a risk that the contractor or subcontractor is not complying with DB. The funding recipients shall immediately conduct necessary interviews in response to an alleged violation of the prevailing wage requirements. All interviews shall be conducted in confidence. 3)The funding recipient shall periodically conduct spot checks of a representative sample of weekly payroll data to verify that contractors or subcontractors are paying the appropriate wage rates. The funding recipient shall establish and follow a spot check schedule based on its assessment of the risks of noncompliance with DB posed by contractors or subcontractors and the duration of the contract or subcontract. At a minimum, the funding recipient must spot check payroll data within two weeks of each contractor or subcontractor’s submission of its initial payroll data and two weeks prior to the completion date the contract or subcontract. The funding recipients must conduct more frequent spot checks if the initial spot check or other information indicates that there is a risk that the contractor or subcontractor is not complying with DB . In addition, during the examinations the funding recipient shall verify evidence of fringe CW/DW SRF P&S E Recipient Notice benefit plans and payments there under by contractors and subcontractors who claim credit for fringe benefit contributions. The funding recipient shall periodically review contractors and subcontractors use of apprentices and trainees to verify registration and certification with respect to apprenticeship and training programs approved by either the U.S Department of Labor or a state, as appropriate, and that contractors and subcontractors are not using disproportionate numbers of, laborers, trainees and apprentices. These reviews shall be conducted in accordance with the schedules for spot checks and interviews described in Item 5(b) and (c) above. The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to the funding recipient, that is, the entity that receives the grant or loan from the MDNR. As to each payroll copy received, the funding recipient shall provide written confirmation in a form satisfactory to the MDNR indicating whether or not the project is in compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies for the specified week. The funding recipients must immediately report potential violations of the DB prevailing wage requirements to the EPA DB contact listed above and to the appropriate DOL Wage and Hour District Office listed at https://www.dol.gov/esa/contacts/whd/america2.htm. CW/DW SRF P&S E Recipient Notice Statement of Compliance (To be submitted with contractor’s weekly payroll if not using form WH-347 or LS-57) I hereby certify the following: 1) The payroll for the payroll period contains the information required to be provided under 29 CFR 5.5 (a)(3)(ii) and 8 CSR 30-3.010(6), and that the appropriate information is being maintained under 29 CFR 5.5 (a)(3)(i) and Section 290.290 RSMo, 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 29 CFR part 3.5 and Section 290.315 RSMo; 3)That each laborer or mechanic has been paid not less than the applicable state or federal wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable state or federal wage determination incorporated into the contract. 4)The willful falsification of any of the above statements may subject the contractor or subcontractor to civil or criminal prosecution. See section 1001 of Title 18 and section 231 of Title 31 of the United States Code. ____________________________________________ ______________________ Signature of Contractor or Subcontractor Date EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET WASHINGTON, D.C. 20503 April 18, 2022 M-22-11 MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES FROM: Shalanda D. Young Director SUBJECT: Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (“IIJA”), Pub. L. No. 117-58, which includes the Build America, Buy America Act (“the Act”). Pub. L. No. 117-58, §§ 70901-52. The Act strengthens Made in America Laws 1 and will bolster America’s industrial base, protect national security, and support high-paying jobs. The Act requires that no later than May 14, 2022—180 days after the enactment of the IIJA—the head of each covered Federal agency 2 shall ensure that “none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.”3 The Act affirms, consistent with Executive Order 14005, Ensuring the Future Is Made in All of America by All of America’s Workers (“the Executive Order”), this Administration’s priority to “use terms and conditions of Federal financial assistance awards to maximize the use of goods, products, and materials produced in, and services offered in, the United States.”4 The Act provides statutory authorities for the Made in America Office (“MIAO”) in the Office of Management and Budget (“OMB”) to maximize and enforce compliance with Made in 1 “Made in America Laws” means all statutes, regulations, rules, and Executive Orders relating to Federal financial assistance awards or Federal procurement, including those that refer to “Buy America” or “Buy American,” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured products offered in the United States. Made in America Laws include laws requiring domestic preference for maritime transport, including the Merchant Marine Act of 1920 (Pub. L. No. 66-261), also known as the Jones Act. Exec. Order No. 14,005, 86 Fed. Reg. 7475, § 2(b) (Jan. 28, 2021), available at https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers. Made in America Laws also include laws that give preference to Indian-owned and -controlled businesses, such as the Buy Indian Act (25 U.S.C. 47), that produce items in the United States. 2 For the purposes of this guidance, the terms “Federal agency” and “agency” mean any authority of the United States that is an “agency” (as defined in section 3502 of title 44, United States Code), other than an independent regulatory agency (as defined in that section). IIJA, § 70912(3). 3 IIJA, § 70914(a). 4 Exec. Order No. 14,005 (see footnote 1). America Laws.5 MIAO aims to increase reliance on domestic supply chains and reduce the need for waivers through a strategic process aimed at: achieving consistency across agencies; gathering data to support decision-making to make U.S. supply chains more resilient; bringing increased transparency to waivers in order to send clear demand signals to domestic producers; and concentrating efforts on changes that will have the greatest impact.6 This memorandum provides implementation guidance to Federal agencies on the application of: (1) a “Buy America” preference 7 to Federal financial assistance programs for infrastructure; and (2) a transparent process to waive such a preference, when necessary. A Federal financial assistance program for infrastructure is any program under which an award may be issued for an infrastructure project, regardless of whether infrastructure is the primary purpose of the award. The term “project” means any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States.8 Agencies should determine how this guidance is best applied to their infrastructure programs and processes, and consult with OMB, as needed, on establishing criteria, processes, and procedures for applying a Buy America preference and issuing waivers. OMB may update or provide additional guidance, as appropriate, to further assist agencies in the implementation of a Buy America preference. I.Application of a Buy America Preference By May 14, 2022, agencies must ensure that all applicable programs comply with section 70914 of the Act, including by the incorporation of a Buy America preference in the terms and conditions of each award with an infrastructure project.9 The Act requires the following Buy America preference: (1)All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. (2)All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation. 5 IIJA, § 70923(a) & (b)(1). 6 OMB Memorandum M-21-26, Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws available at: https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-06.pdf 7 For the purposes of this guidance, a “Buy America” preference is a domestic content procurement preference as defined in IIJA, § 70912(2). 8 IIJA, § 70912 (5) & (7). 9 See Appendix I: Example of Award Term -Required Use of American Iron, Steel, Manufactured Products, and Construction Materials. 2 (3)All construction materials are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.10, 11 II.Applicability to Federal Financial Assistance Programs This guidance applies to all Federal financial assistance as defined in section 200.1 of title 2, Code of Federal Regulations 12—whether or not funded through IIJA—where funds are appropriated or otherwise made available and used for a project for infrastructure. Federal financial assistance means assistance that non-Federal entities receive or administer in the form of grants, cooperative agreements, non-cash contributions or donations of property, direct assistance, loans, loan guarantees, and other types of financial assistance. The term “non-Federal entity” includes States, local governments, territories, Indian tribes, Institutions of Higher Education (IHE), and nonprofit organizations.13 For purposes of this guidance, for-profit organizations are not considered non-Federal entities. However, this guidance does not alter independent statutory authorities that agencies may have to include domestic content requirements in awards of Federal financial assistance issued to for-profit organizations. Federal agencies are encouraged to consult with OMB if they are uncertain about the applicability of this guidance to any particular infrastructure program. Before applying a Buy America preference to a covered program that will affect Tribal communities, Federal agencies should follow the consultation policies established through Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and consistent with policies set forth in the Presidential Memorandum of January 26, 2021, on Tribal Consultation and Strengthening Nation-Nation Relationships. Federal agencies should commence consultation promptly. This guidance does not apply to “expenditures for assistance authorized under section 402, 403, 404, 406, 408, or 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170a, 5170b, 16 5170c, 5172, 5174, or 5192) relating to a major disaster or emergency declared by the President under section 401 or 501, respectively, of such Act (42 U.S.C. 5170, 5191) or pre and post disaster or emergency response expenditures.”14 “[P]re and post disaster or emergency response expenditures” consist of expenditures for financial assistance that are (1) authorized by statutes other than the Stafford Act, 42 U.S.C. §§ 5121 et seq., and (2) made in anticipation of or response to an event or events that qualify as an “emergency” or “major disaster” within the meaning of the Stafford Act, id. § 5122(1), (2). Awards made to support the construction or improvement of infrastructure to mitigate the damage that may be caused by a non-imminent future emergency or disaster, such as awards 10 IIJA, § 70912 (2) & (6)(B)(ii). 11 See Section VIII. of this guidance for more information on construction materials. 12 IIJA § 70912(4)(A) 13 See 2 C.F.R. § 200.1. 14 IIJA § 70912(4)(B) 3 made under FEMA’s Flood Mitigation Assistance program,15 do not qualify as “pre and post disaster or emergency response expenditures.” Subawards should conform to the terms and conditions of the Federal award from which they flow.16 The IIJA’s definition of “infrastructure” encompasses public infrastructure projects. Thus, the term “infrastructure” includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property.17 Agencies should treat structures, facilities, and equipment that generate, transport, and distribute energy -including electric vehicle (EV) charging -as infrastructure. When determining if a program has infrastructure expenditures, Federal agencies should interpret the term “infrastructure” broadly and consider the definition provided above as illustrative and not exhaustive. When determining if a particular construction project of a type not listed in the definition above constitutes “infrastructure,” agencies should consider whether the project will serve a public function, including whether the project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation, as opposed to a project that is privately owned and not open to the public. Projects with the former qualities have greater indicia of infrastructure, while projects with the latter quality have fewer. Projects consisting solely of the purchase, construction, or improvement of a private home for personal use, for example, would not constitute an infrastructure project. Federal agencies are strongly encouraged to consult with OMB when making such determinations. Agencies should consult with MIAO regarding their readiness to apply the requirements of the Act to covered programs. Agencies with questions regarding the application of a Buy America preference to agency-specific programs, including questions about the possible use of waivers during adjustment periods as agencies work to implement the Act, are advised to reach out to MIAO for technical assistance and advice. III.Consistency with International Agreements Pursuant to section 70914(e) of the Act, this guidance must be applied in a manner consistent with the obligations of the United States under international agreements. IV.Avoid Unnecessary Disruption The Act makes clear that its preferences apply to a Federal financial assistance program for infrastructure only to the extent that a domestic content procurement preference as described 15 See 42 U.S.C. § 4104c. 16 2 CFR 200.101 (b) (2) 17 IIJA, § 70912(5). 4 in section 70914 of the Act does not already apply to iron, steel, manufactured products, and construction materials.18 Agencies should consider whether existing domestic content requirements meet the standards in the Act, as described in this memorandum. Agencies must make necessary changes to come into compliance with the Act’s requirements, while preserving policies and provisions that already meet or exceed the standards required by the Act. For example, a program in which the standards for iron and steel already meet the standards in the Act may nevertheless be required to adopt new standards for manufactured products and construction materials. Maintaining current policies where appropriate avoids unnecessary disruption to programs, or elements of programs, that already meet or exceed Build America, Buy America requirements. V.Effective Date for Awards Agencies must ensure that, starting on May 14, 2022, all Federal financial assistance programs for infrastructure comply with the requirements of section 70914 of the Act. Therefore, new awards made on or after May 14, 2022, must take appropriate steps to ensure financial assistance awards comply with these requirements, which may include appropriate terms and conditions 19 incorporating a Buy America preference. Renewal awards and amendments obligating additional funds to existing awards that are executed on or after May 14, 2022, must also include a Buy America preference. This means that agencies must include a Buy America preference in awards issued on or after May 14, 2022, even if Notices of Funding Opportunities for those awards did not include a Buy America preference. In these cases, agencies may consider whether public interest waivers may be needed to avoid undue increases in the time and cost of a project. Similarly, public interest waivers may be needed for awards and amendments made on or after May 14, 2022, where budgets for purchase of covered materials have already been agreed upon (including if materials have been ordered and construction has begun). Consistent with the guidance provided below, agencies should issue waivers judiciously and clearly communicate to recipients the limitations and conditions of any such waivers. VI.Articles, Materials, and Supplies for Infrastructure A Buy America preference, as defined in section I of this guidance, only applies to the iron and steel, manufactured products, and construction materials used for the infrastructure project under an award. If an agency has determined that no funds from a particular award under a covered program will be used for infrastructure, a Buy America preference does not apply to that award. Similarly, for a covered program, a Buy America preference does not apply to non- infrastructure spending under an award that also includes a covered project. A Buy America preference applies to an entire infrastructure project, even if it is funded by both Federal and non-Federal funds under one or more awards. A Buy America preference only applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply 18 IIJA, § 70917(a) &(b). 19 See Appendix I: Example of Award Term -Required Use of American Iron, Steel, Manufactured Products, and Construction Materials for exemplary language. 5 to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project, but are not an integral part of or permanently affixed to the structure. For the purposes of this guidance, an article, material, or supply should only be classified into one of the following categories: (1) iron or steel; (2) a manufactured product; or (3) a construction material. For ease of administration, an article, material, or supply should not be considered to fall into multiple categories. Agencies should apply the iron and steel test to items that are predominantly iron or steel, unless another standard applies under law or regulation. Any waivers from these requirements must be in writing and meet the requirements of section 70914(b). VII.Issuing Buy America Waivers Pursuant to Section 70914(c) of the Act, the head of a Federal agency may waive the application of a Buy America preference under an infrastructure program in any case in which the head of the Federal agency finds that— (1)applying the domestic content procurement preference would be inconsistent with the public interest (a “public interest waiver”); (2)types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality (a “nonavailability waiver”); or (3)the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent (an “unreasonable cost waiver”). Federal agencies are responsible for processing and approving all waivers, including waivers requested by recipients and on behalf of subrecipients. To the greatest extent practicable, waivers should be targeted to specific products and projects.20 Before issuing a waiver, the head of the Federal agency must make publicly available on the agency’s website a detailed written explanation for the proposed determination to issue the waiver and provide at least 15 days for public comment on the proposed waiver.21 General applicability waivers are subject to a minimum 30-day public comment period.22 By April 29, 2022, agencies should provide the website address where they will be posting proposed waivers for public comment to MBX.OMB.MadeInAmerica@omb.eop.gov. Pursuant to sections 70914(c) and 70937 of the Act, the waiver must be cross-posted to a centralized waiver transparency website managed by GSA, BuyAmerican.gov,23 no later than November 15, 2022. 20 See Section VII of this guidance for information on waiver principles and criteria. 21 Executive Order, § 4(b)(i)(2); IIJA, § 70914(c); IIJA, § 70937 (note that “Buy American” as used in this section also refers to Buy America preferences, per IIJA, § 70932(1)). 22 IIJA § 70914(d)(2)(A)(ii). See Section VII of this guidance for information on general applicability waivers. 23 BuyAmerican.gov redirects to MadeInAmerica.gov. 6 To minimize duplication and promote efficiency, MIAO and GSA will coordinate with agencies on the expansion of the existing website’s functionality to display waivers for Federal financial assistance and provide further instructions to agencies as necessary. Federal agencies are responsible for performing due diligence and approving or rejecting waivers consistent with the Act, this guidance, and any other applicable Buy America laws. Federal agencies should notify MIAO in advance of posting an award-or project-level proposed waiver for public comment. However, Federal agencies must consult with MIAO for proposed waivers with broader applicability (such as a general applicability waiver) before posting them for public comment. The purpose of the consultation is to identify any opportunities to structure the waiver in order to maximize the use of goods, products, and materials produced in the United States to the greatest extent possible consistent with law. Federal agencies should send proposed waivers for review to MBX.OMB.MIAwaivers@omb.eop.gov. Federal agencies must submit to MIAO a proposed waiver for review after the public comment period has concluded. MIAO will review the proposed waiver to determine if it is consistent with applicable law and policy,24 and will notify the Federal agency of its determination. All waiver requests must include a detailed justification for the use of goods, products, or materials mined, produced, or manufactured outside the United States 25 and a certification that there was a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with potential suppliers.26 In addition, at a minimum and to the greatest extent practicable, each proposed waiver submitted to MIAO should include the following information, as applicable: •Waiver type (nonavailability, unreasonable cost, or public interest) •Recipient name and Unique Entity Identifier (UEI) •Federal awarding agency organizational information (e.g., Common Government- wide Accounting Classification (CGAC) Agency Code) •Financial assistance listing name and number •Federal financial assistance program name •Federal Award Identification Number (FAIN) (if available) •Federal financial assistance funding amount •Total cost of infrastructure expenditures, including all Federal and non-Federal funds (to the extent known) •Infrastructure project description and location (to the extent known) •List of iron or steel item(s), manufactured products, and construction material(s) proposed to be excepted from Buy America requirements, including name, cost, country(ies) of origin (if known), and relevant PSC and NAICS code for each. •A certification that the Federal official or assistance recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor. 24 Executive Order, § 4(c). 25 IIJA, § 70937(c)(2)(A). 26 IIJA, § 70937(c)(2)(D). 7 •A statement of waiver justification, including a description of efforts made (e.g., market research, industry outreach), by the Federal awarding agency and, and in the case of a project or award specific waiver, by the recipient, in an attempt to avoid the need for a waiver. Such a justification may cite, if applicable, the absence of any Buy America-compliant bids received in response to a solicitation. •Anticipated impact if no waiver is issued. •Any relevant comments received through the public comment period. The purpose of the information is to ensure that the agency has adequate information to perform due diligence, that MIAO has sufficient information to determine whether the proposed waiver is consistent with law and policy, and that sufficient information is available for public review. Information provided for public review should help interested manufacturers gauge the demand for products for which agencies are considering waiving a Buy America preference. To avoid a need for duplicative waiver requests from entities that receive funding for one infrastructure project through multiple Federal agencies, the Federal agency contributing the greatest amount of Federal funds for the project should be considered the “Cognizant Agency for Made in America” and should take responsibility for coordinating with the other Federal awarding agencies. Such coordination will provide uniform waiver criteria and adjudication processes, minimize duplicative efforts among Federal agencies, and reduce burdens on recipients. The Cognizant Agency for Made in America shall be responsible for consulting with the other Federal awarding agencies, publicizing the proposed joint waiver, and submitting the proposed joint waiver for review to MIAO. a.Exceptions for Unforeseen and Exigent Circumstances In limited situations where there is an urgent need in an unforeseen and exigent circumstance, agencies have the authority to waive the application of Buy America preferences without submitting the waiver for public comment and MIAO determination. 27 As an exception to the public transparency requirements of the Act, agencies should exercise that authority only when necessary. Further, to ensure MIAO can fulfill its role as a central and transparent source of Made in America waivers, an agency that issues a waiver without first seeking public comment and MIAO approval must, within 30 days of the waiver’s issuance, submit a report to MIAO explaining its reliance upon the “unforeseen and exigent circumstance” exception.28 MIAO will provide further instructions to agencies on how to submit those reports. Although public posting and MIAO review may be waived in exigent circumstances, agencies remain responsible for performing due diligence appropriate to the circumstances, consistent with the principles and criteria in paragraphs VII(b) and (c) below. 27 IIJA, § 70937(b)(2). 28 This reporting process was established pursuant to Executive Order 14,005, § 4(d) and OMB Guidance on Improving the Transparency of Made in America Waivers available at: https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency- of-Made-in-America-Waivers.pdf. 8 b.Waiver Principles and Criteria To ensure they are scrupulously monitoring, enforcing, and complying with applicable Buy America Laws and minimizing the use of waivers,29 agencies must apply standard criteria to determine whether to grant a waiver in a given circumstance. Agencies with existing criteria must review it for consistency with this guidance and update it as appropriate. All other agencies must establish criteria. Agencies may reject or grant waivers in whole or in part. To the greatest extent practicable, waivers should be issued at the project level and be product-specific. Overly broad waivers undermine market signals designed to boost domestic supply chains, particularly for key articles, materials and supplies in critical supply chains (i.e., critical supply chains identified in Executive Order 14017, America’s Supply Chains). When necessary, agencies may consider issuing a waiver that has applicability beyond a single project; however, agencies should always issue, construe, and apply waivers to ensure the maximum utilization of goods, products, and materials produced in the United States, consistent with applicable law. Federal agencies may consult with MIAO when establishing or modifying criteria for granting waivers. They may also work within the Made in America Council, a practice that will help to foster consistency across agencies to the greatest extent practical and appropriate, given agency and program missions. Federal agencies should use the following principles before issuing a waiver of any type: •Time-limited: In certain limited circumstances, a Federal agency may determine that a waiver should be constrained principally by a length of time, rather than by the specific projects to which it applies. Waivers of this type may be appropriate, for example, when an item that is “nonavailable” is widely used in projects funded by a particular program’s awards. When issuing such a waiver, the agency should identify a short, definite time frame (e.g., no more than one to two years) designed to ensure that, as domestic supply becomes available, domestic producers will have prompt access to the market created by the program. •Targeted: Waivers that are not limited to particular projects should apply only to the item(s), product(s), or material(s) or category(ies) of item(s), product(s), or material(s) necessary. Waivers that are overly broad will tend to undermine domestic preference policies. Broader waivers will receive greater scrutiny from MIAO. •Conditional: Federal agencies are encouraged to issue waivers with specific conditions that support the policies of the Act and the Executive Order. These principles and criteria should be viewed as minimum requirements for the use of waivers by Federal agencies.30 Nonavailability Waivers Before granting a nonavailability waiver, agencies should consider whether the recipient has performed thorough market research, which may be accomplished with assistance from the agency, and adequately considered, where appropriate, qualifying alternate items, products, or 29 IIJA § 70933(2). 30 See Section IV. of this guidance for agencies that have existing regulations or guidance. 9 materials. Waivers should describe the market research activities and methods to identify domestically manufactured items capable of satisfying the requirement, including the timing of the research and conclusions reached on the availability of sources. Agencies are encouraged to engage with the Made in America Council to develop resource lists for common items, goods, or materials. Unreasonable Cost Waivers An unreasonable cost waiver is available if the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent. Before granting an unreasonable-cost waiver, to the extent permitted by law, agencies should ensure the recipient has provided adequate documentation that no domestic alternatives are available within this cost parameter. Agencies may assist recipients in gathering documentation. For requests citing unreasonable cost as the statutory basis of the waiver, the waiver justification must include, as applicable, a comparison of the cost of the domestic product to the cost of the foreign product or a comparison of the overall cost of the project with domestic products to the overall cost of the project with foreign-origin products, pursuant to the requirements of the applicable Made in America law.31 Publicly available cost comparison data may be provided in lieu of proprietary pricing information.32 Unreasonable-cost waivers should be no broader than necessary. Public Interest Waivers A waiver in the public interest may be appropriate where an agency determines that other important policy goals cannot be achieved consistent with the Buy America requirements established by the Act and the proposed waiver would not meet the requirements for a nonavailability or unreasonable cost waiver. Such waivers shall be used judiciously and construed to ensure the maximum utilization of goods, products, and materials produced in the United States.33 To the extent permitted by law, determination of public interest waivers shall be made by the head of the agency with the authority over the Federal financial assistance award.34 Public interest waivers may have a variety of bases. As with other waivers, they should be project-specific whenever possible, as what is in the public interest may vary depending upon the circumstances of the project, recipient, and specific items, products, or materials in question. Federal agencies may wish to consider issuing a limited number of general applicability public interest waivers in the interest of efficiency and to ease burdens for recipients. The agency remains responsible for determining whether such a waiver is appropriate to apply to any 31 IIJA, § 70937(c)(2)(B). 32 IIJA, § 70937(c)(2)(B). 33 IIJA, § 70935(a). 34 IIJA, § 70935(b). 10 given project; the Made in America Office will not review each application of such a waiver. The following are examples of types of public interest waivers an agency may consider issuing.35 •De Minimis: Ease of administration is important to reduce burden for recipients and agencies. Federal agencies may consider whether a general applicability public interest waiver should apply to infrastructure project purchases below a de minimis threshold. An agency may consider whether a public interest waiver should apply when necessary to ensure that recipients and Federal agencies make efficient use of limited resources, especially if the cost of processing the individualized waiver(s) would risk exceeding the value of the items waived. Agencies may consider adopting an agency-wide public interest waiver that sets a de minimis threshold, for example, of 5 percent of project costs up to a maximum of $1,000,000. •Small Grants: Agencies may wish to consider whether it is in the public interest to waive application of a Buy America preference to awards below the Simplified Acquisition Threshold. This type of waiver may be particularly relevant in the initial years after enactment of IIJA, and may be phased out over time as agencies develop efficient waiver review capabilities. •Minor Components: Agencies may wish to consider whether it is in the public interest to allow minor deviations for miscellaneous minor components within iron and steel products. A minor components waiver in the public interest may allow non- domestically produced miscellaneous minor components comprising no more than 5 percent of the total material cost of an otherwise domestically produced iron and steel product to be used. It would not be in the public interest to use a minor components waiver to exempt a whole product from the iron and steel requirements, or to allow the primary iron or steel components of the product to be produced other than domestically. •Adjustment Period: Agencies should consider whether brief, time limited waivers to allow recipients and agencies to transition to new rules and processes may be in the public interest. •International Trade Obligations: If a recipient is a State that has assumed procurement obligations pursuant to the Government Procurement Agreement or any other trade agreement, a waiver of a Made in America condition to ensure compliance with such obligations may be in the public interest. •Other Considerations: A waiver may be in the public interest in one circumstance, but not in another, and considerations will depend upon the nature and amount of resources available to the recipient, the value of the items, goods, or materials in question, the potential domestic job impacts, and other policy considerations, including sustainability, equity, accessibility, performance standards, and the domestic content (if any) of and conditions under which the non-qualifying good was produced. All proposed waivers citing the public interest as the statutory basis must include a detailed written statement, which shall address all appropriate factors, such as potential 35 The list is not exhaustive and no agency is required to issue the types of waivers noted as examples. As with other general applicability waivers, generally applicable public interest waivers must be reviewed at least every five years and more often as appropriate. 11 obligations under international agreements, justifying why the requested waiver is in the public interest.36 Before granting a waiver in the public interest, to the extent permitted by law, agencies shall assess whether a significant portion of any cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured products or the use of injuriously subsidized steel, iron, or manufactured products.37 Agencies may consult with the International Trade Administration (ITA) in making this assessment if the granting agency deems such consultation to be helpful. The agency shall integrate any findings from the assessment into its waiver determination as appropriate.38 MIAO will work with ITA and agencies to develop standard processes to expedite this required assessment, such as by ensuring agencies know how to easily access lists of dumped or injuriously subsidized products. c.General Applicability Waivers The term “general applicability waiver” refers to a waiver that applies generally across multiple awards. A general applicability waiver can be “product-specific” (e.g., applies only to a product or category of products) or “non-product specific” (e.g., applies to all “manufactured products”). General applicability waivers should be issued only when necessary to advance an agency’s missions and goals, consistent with IIJA, the Executive Order, and this guidance. For example, an agency might issue a general waiver for a product for which there are well- established domestic sourcing challenges. General applicability waivers will require appropriate justification from the Federal agency. Federal agencies with one or more existing general applicability waivers, including public interest waivers, must review such waivers within five years of the date on which the waiver was issued. Agencies issuing new general applicability waivers must review such waivers at least every five years from the date of issuance. Agencies are encouraged to review general applicability waivers more frequently, when appropriate. In conducting a review of any general applicability waiver, the head of a Federal agency shall— (A)publish in the Federal Register a notice that— (i)describes the justification for a general applicability waiver; and (ii)requests public comments for a period of not less than 30 days on the continued need for a general applicability waiver; and (B)publish in the Federal Register a determination on whether to continue or discontinue the general applicability waiver, considering the comments received in response to the notice published under paragraph (A).39 36 IIJA, § 70937(c)(2)(C). 37 Executive Order, § 5. 38 Executive Order, § 5. 39 IIJA, § 70914(d)(1) & (2). 12 For a period of five years beginning on the date of enactment of the Act, paragraphs (A) and (B) above shall not apply to any product-specific general applicability waiver that was issued more than 180 days before November 15, 2021.40 By no later than November 15, 2022, agencies with existing, non-product specific general applicability waivers that were issued more than five years before November 15, 2021 should promptly commence review of each such waiver by publishing a Federal Register notice as required in section 70914(d)(2)(A) of the IIJA. Should the review justify retaining the waiver, agencies should consider narrowing the waiver in a manner that would support supply chain resilience and boost incentives to manufacture key products domestically, as appropriate. To ensure prompt commencement of projects funded by IIJA, MIAO plans to work with agencies to expedite consideration of general applicability waivers for products or categories of products for which domestic sourcing challenges have been well documented. Agencies should align such waivers with complementary policies, such as work to boost supply chain resiliency and domestic employment. General applicability waivers should include appropriate expiration dates designed to ensure that, once available, Buy America qualifying products receive appropriate consideration. VIII.Preliminary Guidance for Construction Materials For construction materials, the Act requires that, not later than 180 days after November 15, 2021, OMB must issue standards that define the term “all manufacturing processes” in the case of construction materials. These standards must require that each manufacturing process required for the manufacture of the construction material and the inputs of the construction material occurs in the United States. They must also reflect efforts to maximize the direct and indirect jobs benefited or created in the production of the construction material.41 Although the deadline to issue such guidance has not yet passed, OMB is providing preliminary and non-binding guidance to assist agencies in determining which materials are construction materials so that agencies can begin applying Buy America requirements to those materials. This preliminary guidance addresses the requirements as set forth in section 70915(b) of the IIJA while providing sufficient time for OMB to receive additional stakeholder input. The IIJA finds that “construction materials” includes an article, material, or supply— other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives 42— that is or consists primarily of: •non-ferrous metals; •plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); •glass (including optic glass); 40 IIJA, § 70914(d)(3). 41 IIJA, § 70915(b). 42 IIJA, § 70917(c)(1). 13 •lumber; or •drywall.43 To provide clarity to item, product, and material manufacturers and processers, we note that items that consist of two or more of the listed materials that have been combined together through a manufacturing process, and items that include at least one of the listed materials combined with a material that is not listed through a manufacturing process, should be treated as manufactured products, rather than as construction materials. For example, a plastic framed sliding window should be treated as a manufactured product while plate glass should be treated as a construction material. Pending OMB’s issuance of final standards on construction materials, and absent any existing applicable standard in law or regulation that meets or exceeds these preliminary standards, agencies should consider “all manufacturing processes” for construction materials to include at least the final manufacturing process and the immediately preceding manufacturing stage for the construction material. OMB is seeking additional stakeholder input before issuing further guidance identifying initial manufacturing processes for construction materials that should be considered as part of “all manufacturing processes.” Agencies should consult with MIAO, as needed, to ensure that any waiver issued for construction materials is explicitly targeted and time-limited, in order to send a clear market signal that additional standards for “all manufacturing processes” in the case of construction materials will be forthcoming. 43 See IIJA, § 70911(5). 14 Appendix I: Example of Award Term -Required Use of American Iron, Steel, Manufactured Products, and Construction Materials Where applicable, the Federal agency must include appropriate terms and conditions in all awards, in accordance with applicable legal requirements and its established procedures, in order to effectuate the requirements of the Act and this guidance. The following is sample language. To achieve the greatest possible consistency across agencies and programs, agencies should send their proposed terms and conditions to MIAO for review prior to incorporating them into applicable awards. Agencies should begin including appropriate language in NOFOs published before May 14, 2022 to provide applicants fair notice of the Buy America conditions that will apply to funds obligated on or after that date. ** ** ** Recipients of an award of Federal financial assistance from a program for infrastructure are hereby notified that none of the funds provided under this award may be used for a project for infrastructure unless: (1)all iron and steel used in the project are produced in the United States--this means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States; (2)all manufactured products used in the project are produced in the United States—this means the manufactured product was manufactured in the United States; and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and (3)all construction materials 44 are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States. The Buy America preference only applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project, but are not an integral part of the structure or permanently affixed to the infrastructure project. 44 Excludes cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives. 15 Waivers When necessary, recipients may apply for, and the agency may grant, a waiver from these requirements. The agency should notify the recipient for information on the process for requesting a waiver from these requirements. (a)When the Federal agency has made a determination that one of the following exceptions applies, the awarding official may waive the application of the domestic content procurement preference in any case in which the agency determines that: (1)applying the domestic content procurement preference would be inconsistent with the public interest; (2)the types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or (3)the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent. A request to waive the application of the domestic content procurement preference must be in writing. The agency will provide instructions on the format, contents, and supporting materials required for any waiver request. Waiver requests are subject to public comment periods of no less than 15 days and must be reviewed by the Made in America Office. There may be instances where an award qualifies, in whole or in part, for an existing waiver described at [link to awarding agency web site with information on currently applicable general applicability waivers]. Definitions 45 “Construction materials” includes an article, material, or supply—other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives 46—that is or consists primarily of: •non-ferrous metals; •plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); •glass (including optic glass); •lumber; or •drywall. 45 Federal agencies may choose to provide definitions on a public-facing website and reference that website in the terms and conditions, rather than including all definitions in the terms and conditions itself. If an agency chooses to do provide definitions on a public-facing website, it is not considered a deviation from the terms and conditions provided and does not need to be reviewed by OMB. 46 IIJA, § 70917(c)(1). 16 “Domestic content procurement preference’’ means all iron and steel used in the project are produced in the United States; the manufactured products used in the project are produced in the United States; or the construction materials used in the project are produced in the United States. “Infrastructure” includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property. Infrastructure includes facilities that generate, transport, and distribute energy. ‘‘Project’’ means the construction, alteration, maintenance, or repair of infrastructure in the United States. 17 Missouri Division of Labor Standards WAGE AND HOUR SECTION MICHAEL L. PARSON, Governor Annual Wage Order No. 28 Section 014 CALLAWAY COUNTY in accordance with Section 290.262 RSMo 2000, within thirty (30) days after a certified copy of this Annual Wage Order has been filed with the Secretary of State as indicated below, any person who may be affected by this Annual Wage Order may object by filing an objection in triplicate with the Labor and Industrial Relations Commission, P.O. Box 599, Jefferson City, MO 65102- 0599. Such objections must set forth in writing the specific grounds of objection. Each objection shall certify that a copy has been furnished to the Division of Labor Standards, P.O. Box 449, Jefferson City, MO 65102-0449 pursuant to 8 CSR 20-5.010(1). A certified copy of the Annual Wage Order has been filed with the Secretary of State of Missouri. Original Signed bv Taylor Burks, Director Division of Labor Standards Filed With Secretary of State:March 10. 2021 Objections May Be Filed: April 8. 2021 Prepared by Missouri Department of Labor and Industrial Relations Building Construction Rates for Section 014 CALLAWAY County OCCUPATIONAL TITLE **Prevailing Hourly Rate Asbestos Worker $65.54 Boilermaker *$28.12 Bricklayer *$28.12 Carpenter $46.07 Lather Linoleum Layer Millwright Pile Driver Cement Mason *$28.12 Plasterer Communications Technician $52.65 Electrician (Inside Wireman) $52.66 Electrician Outside Lineman *$28.12 Lineman Operator Lineman - Tree Trimmer Groundman Groundman - Tree Trimmer Elevator Constructor *$28.12 Glazier $26.23 Ironworker $61.58 Laborer *$28.12 General Laborer First Semi -Skilled Second Semi -Skilled Mason *$28.12 Marble Mason Marble Finisher Terrazzo Worker Terrazzo Finisher Tile Setter Tile Finisher Operating Engineer $60.20 Group I Group 11 Group III Group III -A Group IV Group V Painter $38.57 Plumber $75.20 Pipe Fitter Roofer $50.44 Sheet Metal Worker $52.69 Sprinkler Fitter *$28.12 Truck Driver *$28.12 Truck Control Service Driver Group I Group II Group III Group IV *The Division of Labor Standards received less than 1,000 reportable hours for this occupational title. Public works contracting minimum wage is established for this occupational title using data provided by Missouri Economic Research and Information Center. **The Prevailing Hourly Rate includes any applicable fringe benefit amounts for each occupational title. ANNUAL WAGE ORDER NO. 28 3/21 Heavy Construction Rates for CALLAWAY County OCCUPATIONAL TITLE **Prevailing Hourly Rate Carpenter *$28.12 Millwright Pile Driver Electrician (Outside Lineman) *$28.12 Lineman Operator Lineman - Tree Trimmer Groundman Groundman - Tree Trimmer Laborer $54.70 General Laborer Skilled Laborer Operating Engineer $63.09 Group I Group II Group III Group IV Truck Driver *$28.12 Truck Control Service Driver Group I Group II Group III Group IV Section 014 Use Heavy Construction Rates on Highway and Heavy construction in accordance with the classifications of construction work established in 8 CSR 30-3.040(3). Use Building Construction Rates on Building construction in accordance with the classifications of construction work established in 8 CSR 30-3.040(2). If a worker is performing work on a heavy construction project within an occupational title that is not listed on the Heavy Construction Rate Sheet, use the rate for that occupational title as shown on the Building Construction Rate Sheet. *The Division of Labor Standards received less than 1,000 reportable hours for this occupational title. Public works contracting minimum wage is established for this occupational title using data provided by Missouri Economic Research and Information Center. **The Prevailing Hourly Rate includes any applicable fringe benefit amounts for each occupational title. ANNUAL WAGE ORDER NO. 28 3/21 OVERTIME and HOLIDAYS OVERTIME For all work performed on a Sunday or a holiday, not less than twice (2x) the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed or the public works contracting minimum wage, whichever is applicable, shall be paid to all workers employed by or on behalf of any public body engaged in the construction of public works, exclusive of maintenance work. For all overtime work performed, not less than one and one-half (11/2) the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed or the public works contracting minimum wage, whichever is applicable, shall be paid to all workers employed by or on behalf of any public body engaged in the construction of public works, exclusive of maintenance work or contractual obligation. For purposes of this subdivision, "overtime work" shall include work that exceeds ten hours in one day and work in excess of forty hours in one calendar week; and A thirty -minute lunch period on each calendar day shall be allowed for each worker on a public works project, provided that such time shall not be considered as time worked. HOLIDAYS January first; The last Monday in May; July fourth; The first Monday in September; November eleventh; The fourth Thursday in November; and December twenty-fifth; If any holiday falls on a Sunday, the following Monday shall be considered a holiday. ANNUAL WAGE ORDER NO. 28 3/21