Exhibit 10.04
Kloberville Agreement
245
COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS
DEPARTMENT OF PUBLIC WORKS
Saipan, MP 96950
▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇-▇▇▇▇-▇▇▇
AGREEMENT and CONTRACT
for CONSTRUCTION
This Agreement and Contract is entered into between the
Commonwealth of the Northern Mariana Islands (the "Commonwealth"),
represented by the Contracting Officer, and TELESOURCE CNMI, INC., ▇.▇.
▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇. MP 96950 (the "Contractor") for the
construction of the KOBLERVILLE EXPANSION PROJECT (the "Project"). The
Commonwealth and the contractor agree as follows-- ARTICLE 1. THE
CONTRACTOR SHALL furnish all materials, labor, equipment, tools and
services necessary to perform in a workmanlike manner all work required
for the completion of the Project, as described in the Scope of Work and
in strict compliance with the Contract Documents, for the firm fixed price
of Six Million Three Hundred Ten US Dollars ($6,310,000.00).
(a)Payments to Contractor. The Commonwealth shall make progress
payments to the Contractor in accordance with the General Conditions. No
other payments will be made.
(b)Contract Time. The Contractor shall commence work on the date
stated in the written Notice to Proceed issued by the Contracting Officer,
and shall complete the Project ready for use within four hundred fifty
(450) calendar days of commencement, exclusive of any review time or
suspension time imposed by the government that delays the orderly
prosecution of the work.
(c)Subcontractors. The Contractor agrees to bind every
subcontractor by the terms of the Contract Documents. The Contract
Documents shall not be construed as creating any contractual relation
between any subcontractor and the Government. ARTICLE 2. LIQUIDATED
DAMAGES. The Contractor shall pay to the Commonwealth the sum of One
Thousand U.S. Dollars ($1000.00) Daily, not as a penalty but as reasonable
liquidated damages for breach of this Contract by the Contractor, by his
failing, neglecting or refusing to complete the work within the time
herein specified, and said sums shall be paid for each consecutive
calendar day that the Contractor shall be in default beyond the time
stipulated in the Contract for completing the work. ARTICLE 3. RECORDS.
The Contractor and subcontractors at all levels shall provide the Public
Auditor of the Commonwealth of the Northern Mariana Islands access to
examine and copy any records, data, or papers relevant to the Contract
until three (3) years have passed since the final payment under the
Contract. (Reference 1 CMC ss.7845.) ARTICLE 4. DEBARMENT AND SUSPENSION.
In addition to other causes set forth in the CNMI Procurement Regulations
ss.6-212(2), a breach of ethical standards under any of the following
sections of the CNMI Procurement Regulations can be cause for (i)
debarment or suspension of the Contractor and/or (ii) termination of the
Contractor for default.
Section 6-205 Gratuities and Kickbacks.
(I) Gratuities. It shall be a breach of ethical standards for any
person to offer, give or agree to give any employee or former
employee, or for any employee or former employee to solicit, demand,
accept, or agree to accept from another person, a gratuity
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DPW ver 07.28.98 CONTRACT AND AGREEMENT PAGE 1 OF 5
246
or an offer of employment in connection with any decision, approval,
disapproval, recommendation, preparation of any part of a program
requirement or a purchase request, influencing the content of any
specification or procurement standard, rendering of advice, investigation,
auditing or in any other advisory capacity in any proceeding or
application, request for ruling, determination, claim or controversy, or
other particular matter, pertaining to any program requirement or a
contract or subcontract or to any solicitation or proposal therefor. (2)
Kickbacks. It shall be a breach of ethical standards for any payment,
gratuity or offer of employment to be made by or on behalf of a
subcontractor under a contract to the prime contractor or higher tier
subcontractor or any person associated therewith as an inducement for the
award of a subcontract or order.
Section 6-206 Prohibition Against Contingent Fees.
(1) Contingent fees. It shall be a breach of ethical standards for a
person to be retained, or to retain a person, to solicit or secure
government contracts upon an agreement or understanding for a commission,
percentage, brokerage or contingent fee, except for retention of bona fide
employees or bona fide established commercial selling agencies for the
purpose of securing business. (2) Representation of contractor. Every
person, before being awarded a government contract, shall represent, in
writing that such person has not retained anyone in violation of this
section. Failure to do so constitutes a breach of ethical standards.
ARTICLE 5. CONTRACT DOCUMENTS. The following instruments (if checked)
constitute the Contract Documents, and collectively evidence and
constitute the Contract. ("Future Documents" will become Contract
Documents by operation of the Contract at a later date.)
----------------------------------- --------------------------------------------
Existing Documents Future Documents
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
X Agreement and Contract X Notice to Proceed
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
X Scope of Work Performance and Payment Bonds
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
X General Conditions
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
X Technical Specifications
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
X Contractor's Proposal
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
X Labor Standards Provisions
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
X Special Provisions
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
X Request for Proposals REP 98-07
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
Invitation for Bids
----------------------------------- --------------------------------------------
----------------------------------- --------------------------------------------
Minutes of Pre-award meetings X Contract management documents issued by
the Contracting Officer
----------------------------------- --------------------------------------------
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ARTICLE 6. SIGNATURE REQUIREMENTS. No contract can be formed prior to the
approval of all required Government officials, as evidenced by the signature
affixed hereto, of each of them. The signature of the Contractor shall be the
last in time to be affixed hereto. The Contract shall become effective upon
the execution by all required signatories.
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Contracting Officer for the Commonwealth
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ Date: July 27, 1999
----------------------------- -----------------------------
----------------------------- -----------------------------
▇▇▇▇▇▇▇ ▇. Ada
Executive Director, Northern Marianas Housing
Corporation
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Expenditure Authority
I declare that I have complied with the construction procedures of the CNMI
Procurement Regulations in the procurement of this contract, that this contract
is for a public purpose, and that the contract docs not waste or abuse public
funds. I declare that I, personally, have the authority to obligate the
expenditure of funds for this contract. I declare under penalty of perjury that
the foregoing is true and correct and that this declaration was executed this
day on Saipan, Commonwealth of the Northern Marianas Islands.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Date: July 27, 1999
------------------------------ -----------------------------
------------------------------ -----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board, Northern Marianas Housing
Corporation
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Procurement and Supply
I hereby certify that to the best of my information and belief this contract is
in compliance with the CNMI Procurement Regulations, is for a public purpose,
and docs not waste or abuse public funds.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: July 27, 1999
------------------------------ -----------------------------
------------------------------ -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director of Procurement and Supply
Northern Marianas Housing Corporation Total $6,310,000.00
I hereby certify that there are sufficient funds available in Account Number
NMHC General Funds in the amount of ____________________ for the execution of
this contract.
s/ ▇▇▇▇ ▇. ▇▇▇▇▇ Date: July 29, 1999
----------------------------- -----------------------------
----------------------------- -----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Chief Accountant, NMHC
A/C#11101 $1,220,000.00
#21600 $1,100,000.00
#11114 $315,000.00
#22200 $3,675,000.00
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DPW ver 07.28.98 CONTRACT AND AGREEMENT PAGE 3 OF 5
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Attorney General
I hereby certify that this contract has been numbered, reviewed and approved as
to form and legal capacity.
/s/ Maya Kara Date: July 30, 1999 at 3:45PM
-------------------------- -----------------------------
-------------------------- -----------------------------
Maya Kara
Attorney General (Acting)
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Governor
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: August 3, 1999
--------------------------- -----------------------------
--------------------------- -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Acting
Govenor
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Commonwealth of the Northern Mariana Islands
Contractor: Contractor's Name
On behalf of the Contractor, I represent that I am authorized to bind the
Contractor to the terms of this Contract, and by my signature I do so hereby
accept for the Contractor, and bind the Contractor to, the terms of this
Contract. I further represent for the Contractor that no person associated with
the Contractor has retained any person in violation of Section 6-205 of the CNMI
Procurement Regulations.
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇ Date: August 13, 1999
--------------------------- -----------------------------
--------------------------- -----------------------------
▇. ▇. ▇▇▇▇▇▇▇▇
Title: President
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Affiliation: Telesource CNMI, Inc.
Other Contractor Information: Telephone number: ▇▇▇-▇▇▇▇
CERTIFICATION OF CONTRACT COMPLETION
I hereby certify that this contract bears all signatures and is therefore
complete.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: August 13, 1999
--------------------------- -----------------------------
--------------------------- -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director of Procurement and Supply
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END OF CONTRACT and AGGREMENT
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DPW ver 07.28.98 CONTRACT AND AGREEMENT PAGE 4 OF 5
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PROCUREMENT INFORMATION
For Government Use Only
Method of Procurement (Check one only)
Competitive Sealed Bids
X Competitive Sealed Proposals 7-27-99
Small Purchase
Sole Source
Emergency
Expedited
Type of Procurement (Check one only)
X Initial Procurement 7-27-99
Subsequent Procurement
Following Bid Protest
Government's Option
Replacement for Defaulted Contractor
Government contract numbers of all related contracts with the Vendor:
"NONE"
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DPW ver 07.28.98 CONTRACT AND AGREEMENT PAGE 5 OF 5
250
STATE OF )
)
ILLINOIS ) S.S.
)
- SPECIAL POWER OF ATTORNEY
Know all men by these presents, that I, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
the undersigned; of PPP 184 Box 10000, Garapan, Saipan MP 96950, do hereby make,
constitute, and appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇,whose address is PPP 184 Box 10000,
Garapan, Saipan MP 96950, my true and lawful attorney in fact for me and in my
name, place and stead and on my behalf, and for my use and benefit:
1. To enter into, execute and deliver any contract, proposal,
offer, agreement, loan document, lease, conveyance or any other instrument that
may be deemed to be necessary and proper for the conduct of business of
Telesource CNMI, Inc.
2. To make, receive, sign, indorse, execute, acknowledge, deliver, and
possess all checks, drafts, withdrawal receipts and deposit instruments relating
to accounts or deposits in, or certificates of deposit of, savings and loan or
other institutions or associations, and such other instruments in writing of
whatever kind and nature as may be necessary or proper to carry out the business
of Telesource CNMI, Inc
3. I grant to said attorney in fact full power and authority to do,
take and perform all and every act and thing whatsoever requisite, proper, or
necessary to be done, in the exercise of any of the rights and powers
hereingranted, as fully to all intents and purposes as I might or could do if
personally present, with full power of substitution or revocation, hereby
ratifying and confirming all that said attorney in fact, or his substitute or
substitutes, shall lawfully do or cause to be done by virtue of this power of
attorney and the rights and powers herein granted.
AND I HEREBY DECLARE that any act or thing lawfully done hereunder by
my said attorney shall be binding on myself and my heirs, and personal
representatives, and assigns.
FURTHER, this Special Power of Attorney shall remain in full force and
effect for three years from the date of its execution unless earlier rescinded
by me.
IN WITNESS WHEREOF, I have hereunto set my hand on the 4th day of
August 1999.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SPECIMEN SIGNATURE
"OFFICAL SEAL"
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇ Notary Public, State of Illinois
My Commission Expires 2-5-00
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
---------------------------------
August 4, 1999
251
General Conditions -- Construction Contract
Contents
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Clause Page
1. ENTIRE AGREEMENT 3
2. CONTRACT NOT ASSIGNABLE 3
3. INDEPENDENT CONTRACTOR 3
4. NO WAIVER BY COMMONWEALTH 3
5. INTERPRETATION AMD VALIDITY 3
6. DEFINITIONS 4
7. AUTHORITIES AND LIMITATIONS 4
8. PAYMENT TO CONTRACTOR 5
9. ASSIGNMENT OF CLAIMS 6
10. STATUS OF ARCHITECTURAL/ENGINEERING DESIGNS AND DATA 6
11. ADDITIONAL REQUIREMENTS FOR "DESIGN-BUILD" PROJECTS 7
12. CONTRACT AND BONDS 8
13. CONSTRUCTION PROGRESS CHART 8
14. FEES AND CHARGES 8
15. CONTRACT TIME 8
16. LIQUIDATED DAMAGES 9
17. DISPUTES AND REMEDIES 9
18. SUSPENSION OF WORK 12
19. CHANGES 12
20. EQUITABLE ADJUSTMENT 14
21. TERMINATION FOR DEFAULT 16
22. TERMINATION FOR THE CONVENIENCE OF THE COMMONWEALTH 15
23. LIABILITY TO THIRD PERSONS; INDEMNIFICATION; INSURANCE 16
24. SUPERINTENDENCE BY ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. ▇▇▇▇▇▇-▇▇-▇▇▇ ▇▇
▇▇. APPROPRIATENESS OF EQUIPMENT 18
27. LAWS TO BE OBSERVED 18
28. PERFORMANCE OF WORK BY CONTRACTOR 19
29. CONDITIONS AFFECTING THE WORK 19
30. SITE INVESTIGATION 20
31. DIFFERING SITE CONDITIONS 19
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DPW Rev. 07.22.98 GENERAL CONDITIONS--CONSTRUCTION CONTRACT GC--l
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32. AS-BUILT DRAWINGS 20
33. SHOP DRAWINGS, COORDINATION DRAWINGS, AND SCHEDULES 20
34. SAMPLES 21
35. INSPECTION AND ACCEPTANCE 22
36. MATERIAL AND WORKMANSHIP 23
37. OTHER CONTRACTS 23
38. SUBCONTRACTS 24
39. COMMONWEALTH OCCUPANCY 24
40. GUARANTEES 24
41. MAINTENANCE OF TRAFFIC 25
42. PERMITS AND RESPONSIBILITIES 24
43. PROJECT SIGNS 24
44. SPECIFICATIONS AND DRAWINGS 24
45. STANDARD REFERENCES 25
46. STANDARD DETAILS 25
47. MEASUREMENTS 25
48. SURVEY MONUMENTS AND BENCH MARKS 26
49. PATENT INDEMNITY 26
50. CONVICT LABOR 26
51. EQUAL OPPORTUNITY 26
52. UTILIZATION OF SMALL BUSINESS CONCERNS 27
53. WORKING HOURS 27
54. SOCIAL SECURITY 27
55. ACCIDENT PREVENTION - PUBLIC SAFETY 28
56. DEBRIS AND CLEANING 28
57. SANITATION 28
58. PROTECTION OF EXISTING VEGETATION, STRUCTURES, UTILITIES, AND
IMPROVEMENTS 28
59. STORM PROTECTION 29
60. FAILURE TO FURNISH INFORMATION AND RECORDS 29
61. PERMISSION TO ENTER THE COMMONWEALTH OF THE NORTHERN
MARIANA ISLANDS 29
62. TRANSPORTATION AND LODGING EXPENSE 29
63. OFFICIALS NOT TO BENEFIT 30
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DPW Rev. 07.22.98 GENERAL CONDITIONS--CONSTRUCTION CONTRACT GC--2
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General Conditions -- Construction Contract
1. ENTIRE AGREEMENT
(a) With respect to the subject matter of the Contract, the Contract, as
expressed in the Contract Documents, represents the entire agreement
between the Commonwealth and the Contractor, and supersedes all prior
agreements and understandings. No revision to the express terms of the
contract shall be implied, except as required by law.
2. CONTRACT NOT ASSIGNABLE
(a) The Contract and all of its covenants shall inure to the benefit of
and be binding respectively upon the Commonwealth and the Contractor and
its partners, successors, assigns and legal representatives. The
Contractor may not assign, transfer, encumber, or sublet its interest or
obligations under the Contract without written consent of the
Commonwealth. No mechanic, subcontractor, supplier, or other person shall
be permitted to contract for or in any other manner have or acquire any
lien upon the services covered by the Contract, or the construction to
which the services pertain, or the land upon which the construction is
situated.
3. INDEPENDENT CONTRACTOR
(a) For purposes of the application of Article 6, "Ethics in Public
Contracting" of the CNMI Procurement Regulations, the Contractor and its
employees, agents, subcontractors, and representatives shall be considered
employees of the Commonwealth government, as provided by ss. 1-201(8) of
the CNMI Procurement Regulations.
(b) Except as stated in the CNMI Procurement Regulations or authorized in
writing by the Contracting Officer and only under the terms so stated or
authorized, neither the Contractor nor its employees or subcontractors
shall act for, represent, or bind the Commonwealth in any capacity or
manner whatsoever, or be deemed or considered an employee, agent, or
representative of the Commonwealth, or be deemed to have any relationship
with the Commonwealth other than that of independent contractor.
4. NO WAIVER BY COMMONWEALTH
(a) The failure of the Commonwealth in any one or more instances to insist
upon strict performance of any of the items of the Contract, or to
exercise any option herein conferred, shall not be construed as a waiver
or relinquishment, to any extent, of the right to assert or rely upon any
such terms or options on any future occasion.
5. INTERPRETATION AND VALIDITY
(a) This contract shall be interpreted under the laws of the Commonwealth
of the Northern Mariana Islands. Where no local law is available to
resolve a particular issue, reference shall be had to U.S. federal
procurement law and cases similar to the matter in dispute, including the
Federal Acquisition Regulation and decisions interpreting it, as well as
scholarly treatises on U.S. federal procurement law.
(b) All provisions of this Contract shall, to the extent practical, be
interpreted to be consistent with the CNMI Procurement Regulations.
In the event of an unresolvable conflict between any provision of the
contract and the CNMI Procurement Regulations, the CNMI Procurement
Regulations shall govern the Contract.
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DPW Rev. 07.22.98 GENERAL CONDITIONS--CONSTRUCTION CONTRACT GC-3
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(c) In the event of a conflict between any provision of the Contract and
Agreement document and these General Conditions, the Contract and
Agreement document shall govern the Contract.
(d) If the contract documents include a "Special Conditions" document,
that document shall be interpreted to supplement these General Conditions
and shall prevail in the event of a conflict.
(e) In the event the contract or the procurement action resulting in the
contract is found to be in violation of the CNMI Procurement Regulations,
then the Contract will not be valid under the laws of the Commonwealth of
the Northern Mariana Islands, and may be found to be legally voidable. The
Commonwealth will seek to have any liability asserted against it by a
contractor which directly results from improper acts of a government
employee to be determined judicially to be the individual liability of the
employee who committed the wrongful acts. (Reference CNMI Procurement
Regulations ss. ss. 1-107, 1-108.)
6. DEFINITIONS
(a) The term "Commonwealth" as used in all Contract Documents shall mean
the government of the Commonwealth of the Northern Mariana Islands.
(b) The term "Contracting Officer" as used in all Contract Documents shall
mean the person executing the Contract as Contracting Officer and includes
a duly appointed successor or authorized representative. If the Secretary
of Public Works executes the contract as Contracting Officer, the
Secretary may, from time to time, in writing, designate another individual
to be Contracting Officer.
7. AUTHORITIES AND LIMITATIONS
(a) All work under the Contract shall be performed under the general
direction of the Contracting Officer, who alone shall have the power to
bind the Commonwealth and to exercise the rights, responsibilities,
authorities and functions vested in him by the contract documents, except
that he shall have the right to designate authorized representatives to
act for him. The authorized representatives are responsible for guiding
the technical aspects of the project and for general surveillance of the
work performed. The authorized representatives shall not make any
commitments or authorize any changes which constitute work not within the
general scope of the Contract, change the expressed terms and conditions
hereof or specifications incorporated or included herein, or by any act or
omission authorize expressly or otherwise, a basis for any increase in the
contract price or time for performance. Whenever any provisions in the
Contract specify an individual (such as, but not limited to, Construction
Engineer, Inspector, or Custodian) or an organization (whether government
or private) to perform any act on behalf of, or in the interest of the
Commonwealth, that individual or organization shall be deemed to be the
Contracting Officer's authorized representative under the Contract but
only to the extent so specified. A copy of each document vesting authority
in an authorized representative or designating an additional authorized
representative shall be furnished to the Contractor.
(b) The Contractor shall perform the Contract in accordance with any order
(including but not limited to instruction, direction, interpretation or
determination issued by an authorized representative in accordance with
his authority to act for the Contracting Officer; but the Contractor
assumes all the risks and consequences of performing the contract in
accordance with any order (including but not limited to, instruction,
direction, interpretation, or determination) of anyone not authorized to
issue such order.
(c) The work of the Contractor is subject to inspection to insure strict
compliance with the terms of the Contract. No inspector is authorized to
change any provision of the specifications without the written authority
of the Contracting Officer, nor shall the presence or absence of an
inspector relieve the Contractor from any requirements of the work.
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DPW Rev. 07.22.98 GENERAL CONDITIONS--CONSTRUCTION CONTRACT GC--4
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8. PAYMENTS TO THE CONTRACTOR
(a) The Commonwealth will pay the contract price as provided in this
clause.
(b) The Commonwealth will make progress payments monthly as the work
proceeds or at more frequent intervals as determined by the Contracting
Officer, on estimates approved by the Contracting Officer.
(c) Before the first progress payment under the Contract becomes due, the
Contractor shall prepare a breakdown of the contract price acceptable to
the Contracting Officer showing the amount included therein for each
principal category of the work, in such detail as requested. The values in
the breakdown will be used to provide a basis for determining progress
payments. The Contractor's overhead, profit and cost of bonds shall be
prorated throughout the life of the contract.
(d) Except as may be otherwise provided in the Contract, the contract
price shall include all applicable Federal, Commonwealth of the Northern
Mariana Islands, and local taxes and duties.
(e) Estimates on which progress payments are based shall include the value
(as determined by the Contracting Officer) of satisfactory in place work
performed pursuant to change orders.
(f) Preparatory work done will not be taken into consideration in
preparing estimates upon which progress payments are based.
(g) The Contracting Officer, at his discretion, may authorize payments for
materials delivered and stored on the work site. The Contractor is fully
responsible for the materials delivered and stored by him.
(h) The Contractor, prior to receiving a progress or final payment under
the Contract, shall submit to the Contracting Officer a certification that
the Contractor has made payments from the proceeds of prior payments, or
that he will make timely payment from the proceeds of the progress
payments or final payment due him, to his workers, subcontractors, and
suppliers in accordance with the Contractor's contractual agreement with
them.
(i) In making each progress payment, there shall be retained ten percent
(10%) of the estimated amount until final completion and acceptance of the
contract work. However, if the Contracting Officer, at any time after
fifty percent (50%) of the work has been completed, finds that
satisfactory progress is being made, the Contracting Officer may authorize
any of the remaining progress payments be made in full with not retainage.
Also, whenever the work is substantially complete, the Contracting
Officer, if he considers the amount retained to be in excess of the amount
adequate for the protection of the Commonwealth, at his discretion, may
release to the Contractor all or a portion of such excess amount.
Furthermore, upon completion and acceptance of each separate building,
public work, or other division of the contract on which the price is
stated separately in the contract, payment may be made therefore without
retention of a percentage.
(j) All material and work covered by progress payments made shall
thereupon become the sole property of the Commonwealth, but this provision
shall not be construed as relieving the Contractor from the sole
responsibility for all material and work upon which the payments have been
made or the restoration of any damaged work, or as waiving the right of
the Commonwealth to require the fulfillment of all of the terms of the
contract.
(k) Upon completion and acceptance of all work, the amount due the
Contractor under the Contract shall be paid upon the presentation of a
properly executed voucher and after the Contractor shall have furnished
the Commonwealth with a written release of all claims against the
Commonwealth arising by virtue of the Contract, other than claims stated
in amounts as may be specifically excepted by the Contractor from the
operation of the release. If the Contractor's claim to amounts payable
under the Contract has been assigned under the "Assignment of Claims"
clause, a release may also be required of the assignee.
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(a) If the Contract provides for payments aggregating One Thousand Dollars
(US$1,000.00) or more, claims for monies due or to become due the
Contractor from the Commonwealth under the Contract may be assigned to a
bank, trust company or other financing institution, including any U.S.
federal lending agency, and may thereafter be further assigned or
reassigned to any such institution. Any such assignment or reassignment
shall cover all amounts payable under the Contract and not already paid,
and shall not be made to more than one party, except that any such
assignment or reassignment may be made to one party as agent or trustee
for two or more parties participating in such financing.
(b) In no event shall copies of the Contract Documents or of any drawings,
specifications, or other similar documents relating to work under the
Contract, if marked "Secret", "Top Secret" or "Confidential", be furnished
to any assignee, nor may any part of all the Contract so marked be
disclosed to such assignee without the prior written authorization of the
Contracting Officer.
10. STATUS OF ARCHITECTURAL/ENGINEERING DESIGNS AND DATA
(a) Confidential Information. All information contained in any
architectural/engineering design studies, reports, and drawings and all
parts thereof, submitted to the Commonwealth pursuant to the Contract, are
to be treated as strictly confidential and for official use of the
Commonwealth only. The Contractor shall take all reasonable steps to
unsure that no member of its staff or organization shall divulge any
information concerning the studies, reports and drawings except to a duly
authorized representative of the Commonwealth, without prior written
permission of the Commonwealth. This confidential restriction shall apply
for five (5) years after completion of the work under the Contract.
The foregoing does not apply to any information falling into any of the
following categories: (i) Information which at the time of disclosure
is or thereafter becomes within the public domain other than by
reason of Contractor's breach of the Contract. (ii) Information which
prior to disclosure hereunder was already in the Contractor's
possession without violation of any secrecy obligation to the
Commonwealth either directly or indirectly. (iii) Information which
subsequent to disclosure hereunder is obtained by the Contractor from
a third party who is lawfully in possession of such information and
which information is not subject to the secrecy obligation to the
Commonwealth or to others. (iv) Information which is developed by the
Contractor independently of its work under the Contract.
(b) Commonwealth Rights. The Commonwealth shall have unlimited rights, for
the benefit of the Commonwealth, to the architectural/engineering work
product of the Contractor created pursuant to the Contract, including all
drawings, specifications, architectural/engineering designs, notes, and
other architectural/engineering work developed in the performance of the
Contract, including the right to use some or all of the
architectural/engineering work product on any other Commonwealth work
without additional cost to the Commonwealth. The Commonwealth shall have
and enjoy a royalty-free license to all architectural/engineering work
product which the Contractor may cover by copyright and to all engineering
and architectural designs as to which the Contractor may assert any rights
to or establish any claim under the design patent or copyright laws. The
Contractor shall submit to the Commonwealth all original copies of
reports, completed drawings, notes, and other documents developed in the
performance of the Contract after completion and acceptance of the work.
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11. ADDITIONAL REQUIREMENTS FOR "DESIGN-BUILD" PROJECTS.
(a)Applicability of Provisions. This clause shall apply in design-build
projects to the extent the provisions herein are not expressly covered or
contradicted by the Contract and Agreement or Scope of Work documents.
(b) Site Visits and Conference. The Contractor shall, if necessary, visit
the project site and shall hold conferences with representatives of the
Commonwealth and take such other action as may be necessary to obtain the
data required to accomplish the Project.
(c) Preliminary Sketches. Preliminary sketches shall include studies,
reports, and plans, elevations and sections developed to the extent as
will clearly indicate the proposed planning and a reasonable estimate of
the cost. Preliminary sketches, along with an estimate of the cost of the
project shown on the sketches, shall be submitted for the approval of the
Contracting Officer. The Contractor shall change the preliminary sketches
or reports for the Project to the extent necessary to meet the
requirements of the Commonwealth, and after review and approval by the
Contracting Officer, the Contractor shall furnish necessary prints of the
approved preliminary sketches and reports to the Contracting Officer.
(d) Final Drawings and Specifications. After preliminary sketches and
estimates have been approved, the Contractor shall proceed with the
preparation of reports, drawings, and specifications as required by the
Contracting Officer in connection with the Project. Reports, drawings,
specifications, and estimates shall be delivered to the Contracting
Officer in such sequence and at such times as required by the Contracting
Officer. Following review by the Contracting Officer, the Contractor shall
make such corrections as are required to obtain the Contracting Officer's
approval, and shall submit prints of the final reports, drawings, and
specifications.
(e) Deficiencies in the Work. The Contractor shall be responsible for the
professional quality, technical accuracy and coordination of all services
furnished by the Contractor under the Contract. The Contractor shall,
without additional compensation, correct or revise any errors or
deficiencies in the work, including both the design and the construction
of the Project.
(f) Work to be Continuous. Unless directed otherwise by the Contracting
Officer, work on the Project shall not be suspended during periods of
design review by the Contracting Officer.
12. CONTRACT AND BONDS
(a) If the Contractor fails to satisfactorily execute the required forms
of contract, performance bond, and payment bond, within the time
established in the Instruction To Bidders, the Commonwealth may proceed to
have the required work performed by contract or otherwise, and the
Contractor shall be liable for any excess cost to the Commonwealth and the
Contractor's bid guarantee shall be available toward off-setting such
excess cost.
13. CONSTRUCTION PROGRESS CHART
(a) Within ten (10) days after receipt of the Notice to Proceed, the
Contractor shall prepare and submit to the Contracting Officer for
approval six (6) copies of a practicable progress chart. The chart shall
show the principal categories of work corresponding with those used in the
breakdown on which progress payments are based, the order in which the
Contractor proposes to carry on the work, the date on which it will start
each of the categories of work, and the contemplated date for completing
the same. If the Project includes a design component that is the
responsibility of the Contractor, the progress chart shall include
provisions for the design and review elements specified in the Scope of
Work document and in the "Additional Requirements for Design-Build
Projects"
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clause. The chart shall be in suitable scale to indicate graphically the
total percentage of work scheduled to be in place at any time. At the end
of each progress payment period, or at such intervals as directed by the
Contracting Officer, the Contractor shall: (1) adjust the chart to reflect
any changes in the contract work, completion time, or both, as approved by
the Contracting Officer; (2) enter on the chart the total percentage of
work actually in place; and (3) submit three copies of the adjusted chart
to the Contracting Officer.
(b) If, in the opinion of the Contracting Officer, work actually in place
falls behind that scheduled, the Contractor shall take such action as
necessary to improve his progress. In addition, the Contracting Officer
may require the Contractor to submit a revised chart demonstrating his
program and proposed plan to make up a lag in schedule progress and to
ensure completion of work within the contract time. If the Contracting
Officer finds the proposed plan not acceptable, he may require the
Contractor to increase the work force, the construction plan or equipment,
or the number of work shifts without additional cost to the Commonwealth.
(c) Failure of the Contractor to comply with these requirements shall be
considered grounds for determination by the Contracting Officer that the
Contractor is failing to prosecute the work with such diligence as will
ensure its completion within the time specified.
14. FEES AND CHARGES
(a) The Contractor shall pay all fees and charges pertaining to temporary
connection to utilities for construction. The Contractor will apply for
permanent utility connections with the assistance of the Commonwealth. The
Commonwealth will pay all fees and charges regarding permanent utility
connections. The Contractor shall pay all charges for the use of property
outside of the work site.
15. CONTRACT TIME (a) The Contractor shall perform fully, entirely, and in a
satisfactory and acceptable manner the work contracted, within the number
of calendar days set forth in the contract documents, which number
(adjusted by the exclusions and extensions described below, and by any
applicable amendments, addenda, or change order to the Contract) shall be
the "contract time". Time will be assessed against the Contractor beginning
with the date of the Notice to Proceed. All strikes, lockouts, unusual
delays in transportation, or any condition over which the Contractor has no
control, and also any suspensions ordered by the Contracting Officer for
causes not the fault of the Contractor, shall be excluded from the
computation of the contract time. If the satisfactory execution and
completion of the contract shall require work or materials in greater
amounts or quantities than those set forth in the original contract, then
the contract time shall be extended in the same proportion as the cost of
the additional work bears to the original work contracted for. No
allowances will be made for delays or suspensions of the prosecution of the
work due to the fault of the Contractor. In order to secure an extension of
time for delays beyond his control, the Contractor shall within ten (10)
days from the beginning of any such delay, notify the Contracting Officer
in writing of the causes of delay, whereupon the Contracting Officer will
ascertain the facts and the extent of the delay and extend the contract
time when, in his judgement, the findings of fact justify such an
extension, and his findings of fact thereon shall be final and conclusive.
(b) In design-build projects that require periods of time for government
review of design elements submitted by the Contractor, the government
review time will not be added to the total time for contract completion
unless such review so disrupts the orderly prosecution of the work by the
Contractor that normal progress is materially impeded, or the Contracting
Officer orders the work suspended pending review. The Contracting Officer
shall, by written order, adjust the contract time in an equitable fashion
to account, if necessary, for delay resulting from government review time.
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16. LIQUIDATED DAMAGES
(a) The amount per day of liquidated damages, as referred to in these
General Conditions, is the sum stated as "Liquidated Damages" in the
Contract and Agreement document, or, if no amount is stated in the
Contract and Agreement, then in any document in the bid package, or, if no
amount is stated in these documents, then in the Proposal, if any. In the
event no amount for liquidated damages may be determined from the
application of the first sentence of this paragraph, then the daily amount
of liquidated damages shall be the greater of (i) one hundred dollars
($100), or (ii) two percent (2%) of the contract price divided by the
number of calendar days of the contract time, the contract time and
contract price being determined at the time of the assessment of
liquidated damages. This amount is considered to be liquidated damages to
reimburse the Commonwealth for loss and damages suffered by the
Commonwealth and is in no case a penalty. (b) In the event the Contractor
shall fail fully to perform and complete the work in conformity with the
Contract within the contract time, the Contractor shall pay to the
Commonwealth for each and every day of the additional time in excess of
the contract time liquidated damages as specified in paragraph (a) of this
clause. (c) Liquidated damages may also be assessed against the Contractor
under other provisions of the Contract, and shall be determined in
accordance with paragraph (a) of this clause. (d) The Commonwealth may
recover the amount of liquidated damages by deducting the amount thereof
out of any monies which may be due or become due the Contractor under the
Contract or under any other existing or future contract between the
Commonwealth and the Contractor, or by an action at law against the
Contractor or his surety, or by any or all of these methods.
17. DISPUTES AND REMEDIES
(a) Notwithstanding any other provision of the Contract, before the
contractor may bring any action law equity relating to any dispute
relating to the Contract, including but not limited to claims for wrongful
termination or breach, the Contractor must first submit the dispute to
administrative resolution and appeal as provided by this clause.
(b) Any dispute between the Commonwealth and the Contractor relating to
the performance, interpretation of, or compensation due under the
Contract, must be filed in writing with the Director of Procurement and
Supply and with the Secretary of Public Works within ten calendar days
after the Contractor obtains knowledge of the facts surrounding the
dispute.
(c) The Secretary of Public Works will attempt to resolve the dispute by
mutual agreement. If the dispute cannot be settled, either the Contractor
or the Contracting Officer may request a decision on the dispute from the
Director of Procurement & Supply. The Director shall review the facts
pertinent to the dispute, secure necessary legal assistance and prepare a
decision that shall include:
(i) Description of the dispute;
(ii) Reference to pertinent contract terms;
(iii) Statement of the factual areas of disagreement or agreement;
and
(iv) Statement of the decision as to the factual areas of
disagreement and conclusion of the dispute with any supporting
rationale.
(d) The Director of Procurement and Supply may require a hearing or that
information be submitted on the record, in his discretion.
(e) Whenever the Contractor has a dispute pending before the Secretary of
Public Works or the Director of Procurement and Supply, the Contractor
must continue to perform according to the
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terms of the contract, and failure to so continue shall be deemed to be a
material breach of the contract unless the Contractor obtains a waiver of
this provision by the Secretary of Public Works.
(f) Paragraphs (b) through (e) are derived from ss.5-20 1 of the CNMI
Procurement Regulations, and shall be interpreted so as not to be in
conflict with the CNMI Procurement Regulations. If an officer of the
Commonwealth other than the Secretary of Public Works executes the
Contract and Agreement as "expenditure authority", then that officer shall
be substituted for "Secretary of Public Works" in paragraphs (b) through
(e).
(g) Disputes arising out of the Labor Standards Provisions of this
Contract (if any) shall be subject to this clause, except, to the extent
such disputes involve classifications or wage rates contained in the CNMI
Title and Pay Plan, which questions shall be referred to the Contracting
Officer. (h) Nothing in this clause shall serve to limit any remedies at
law or equity available to the Commonwealth.
18. SUSPENSION OF WORK
(a) The Contracting Officer may order the Contractor in writing to
suspend, delay, or interrupt all or any part of the work for such period
of time as he may determine to be appropriate for the convenience of the
Commonwealth, including, but not limited to suspensions for unfavorable
weather or other essential conditions, failure on the part of the
Contractor to prosecute properly the work in accordance with the contract,
or failure of the Contractor to carry out orders or to remove defective
materials or work.
(b) In the event of a suspension of work by the Contracting Officer under
paragraph (a), for any reason over which the Contractor has or had no
control, the contractor may be reimbursed for actual money expended on the
job during the period of suspension. No allowance will be made for
anticipated profits. The period of suspension shall be computed from the
date set out in written order for work to cease until the date of the
order for work to resume. Claims for such compensation shall be filed with
the Contracting Officer within 10 days after the date of the order to
resume work, or such claim will not be considered. The Contractor shall
submit with its claim substantiating papers covering the entire amount
shown on the claim. The Contracting Officer shall take the claim under
consideration, and may make such investigations as are deemed necessary,
and shall be the sole judge as to the equitability of such claim and such
decision shall be final.
(c) If the performance of all or any part of the work, for an unreasonable
period of time, is suspended, delayed, or interrupted by an act of the
Contracting Officer in the administration of the Contract, or by his
failure to act within the time specified in the Contract (or if no time is
specified, within a reasonable time), an adjustment shall be made for any
increase in the cost of performance of the Contract (excluding anticipated
profit) necessarily caused by such unreasonable suspension, delay, or
interruption, and the contract shall be modified in writing accordingly.
However, no adjustment shall be made under this clause for any suspension,
delay, or interruption to the extent: (1) that performance would have been
so suspended, delayed, or interrupted by any other cause, including the
fault or negligence of the Contractor; or (2) for which an equitable
adjustment is provided for or excluded under any other provision of the
Contract.
(d) No claim under paragraph (c) shall be allowed: (1) for any costs
incurred more than twenty (20) days before the Contractor shall have
notified the Contracting Officer in writing of the act or failure to act
involved (but this requirement shall not apply as to a claim resulting
from a suspension order); and (2) unless the claim, in an amount stated,
is asserted in writing as soon as practicable after the termination of
such suspension, delay, or interruption, but not later than the date of
final payment under the contract.
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(e) The Contractor shall not suspend the work without written approval by
the Contracting Officer, and prior to resuming work shall give the
Contracting Officer forty-eight (48) hours notice to afford opportunity to
re-establish inspection. (f) No provision of this clause shall be
construed as entitling the Contractor to compensation for delays due to
inclement weather, delays due to failure for surety, for suspensions made
at the request of the Contractor, or for any other delay provided for in
the contract documents, including all amendments, addenda, and change
orders.
19. CHANGES
(a) The Contracting Officer may, at any time and without notice to the
sureties, by written order designated or indicated to be a change order,
make any change in the work within the general scope of the contract,
including but not limited to changes in:
(i) The specifications (including drawings and designs); (ii) The
method or manner of performance of the work;
(iii) The Commonwealth-furnished facilities, equipment, materials,
services, or site; or
(iv) The directing of acceleration in performance of the work.
(b) Any other written order or an order (which terms as used in this
paragraph shall include direction, instruction, interpretation, or
determination) from the Contracting Officer, which causes any such change,
shall be treated as a change order under this clause, provided that the
Contractor gives the Contracting Officer written notice stating the date,
circumstances, and source of the order and that the Contractor regards the
order as a change order.
(c) Except as herein provided, no order, statement, or conduct of the
Contracting Officer shall be treated as a change under this clause or
entitle the Contractor to an equitable adjustment hereunder.
(d) If any change under this clause causes an increase or decrease in the
Contractor's cost of, or the time required for, the performance of any
part of the work under the Contract, whether or not changed by any order,
an equitable adjustment shall be made and the contract modified in writing
accordingly; provided, however, that except for claims based on defective
specifications, no claim for any change under (b) above shall be allowed
for any costs incurred more than twenty (20) days before the Contractor
gives written notice as therein required: and provided further, that in
the case of defective specifications for which the Commonwealth is
responsible, the equitable adjustment shall include any increased cost
reasonably incurred by the Contractor in attempting to comply with such
defective specifications.
(e) If the Contractor intends to assert a claim for an equitable
adjustment under this clause, he must, within thirty (30) days after
receipt of a written change order under paragraph (a) of this clause, or
the furnishing of a written notice under paragraph (b) of this clause,
submit to the Contracting Officer a written statement setting forth the
general nature and monetary extent of such claim, unless this period is
extended by the Contracting Officer. The statement of claim hereunder may
be included in the notice under paragraph (b) of this clause.
(f) No claim by the Contractor for an equitable adjustment under this
clause shall be allowed if asserted after final payment under this
contract.
(g) Additional performance and payment bond protection shall be furnished
by the Contractor in connection with any modification affecting an
increase in the price under the Contract if:
(i) The modification is for new or additional work which is
beyond the scope of the existing contract; or
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(ii) The modification is pursuant to an existing provision of the Contract
and increases the contract price by $5000 or twenty five percent
(25%) of the basic contract price whichever is less.
20. EQUITABLE ADJUSTMENT
(a) The Contractor's written statement of the monetary extent of a claim
for equitable adjustment shall be submitted in the form of a lump sum
proposal (unless otherwise requested by the Contracting Officer) with an
itemized breakdown of all increases or decreases in the cost of the
Contractor's and all subcontractors' work, in at least the following
detail:
(i) Material quantities and unit costs,
(ii) Labor costs (identified with specific item of material to be
placed or operation to be performed), (iii) Workmen's Compensation
and Public Liability Insurance overhead, and - (iv) Employment taxes
under FICA, FUTA, and CNMI Social Security System.
- (b) The percentage for overhead, profit, and commission shall be
negotiated and may vary according to the nature, extent, and complexity of
the work involved, but in no case shall exceed fifteen percent (15%) of
the estimated cost of the work, and shall be considered to include, but is
not limited to, insurance other than that mentioned in this clause, bonds,
use of small tools, incidental job burdens, and general office expense. No
percentages for overhead, profit or commission, will be allowed on
employment taxes under FICA, FUTA, and CNMI Social Security System.
(c) The Contractor shall submit with the proposal, any request for time
extension related to the claim for equitable adjustment.
(d) In considering a proposal, the Contracting Officer will make check
estimates in detail, utilizing unit prices where specified or agreed upon,
with a view to arriving at an equitable adjustment.
(e) After receipt of a proposal with a detailed breakdown, the Contracting
Officer shall act promptly thereon. Provided, however, that when the
necessity to proceed with a change does not allow sufficient time to
properly check a proposal, or in the event of failure to reach an
agreement on a proposal, the Contracting Officer may order the Contractor
to proceed on the basis of price to be determined at the earliest
practicable date but not to be more than the increase or less than the
decrease proposed.
(f) Except in unusual cases where neither the Contractor nor the
Commonwealth can ascertain the full extent of the work which will be
required pursuant to a change until the work involved therein has been
substantially completed, final agreement on a proposal shall be effected
no later than the time when the work involved is estimated by the
Contracting Officer to be 50% complete; in the event final agreement
cannot be reached by that time, the Contracting Officer shall issue a
unilateral determination as to the equitable adjustment of the contract
price and the time required for performance.
21. TERMINATION FOR DEFAULT
(a) If the Contractor refuses or fails to prosecute the work, or any
separable part thereof, with such diligence as will ensure its completion
within the contract time, or fails to complete said work within the
contract time, the Commonwealth may, by written notice to the Contractor
from the Contracting Officer, terminate the Contractor's right to proceed
with the work or such part of the work as to which there has been delay,
after providing ten day's written notice and an opportunity to the
Contractor to show cause why such action should not be taken. In the event
of a termination
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for default under this clause, the Commonwealth may take over the work and
prosecute the same to completion, by contract or otherwise, and may take
possession of and utilize in completing the work such materials,
appliances, and plans as may be on the site of the work and necessary
therefor. Whether or not the Contractor's right to proceed with the work
is terminated, the Contractor and his sureties shall be liable for any
damage to the Commonwealth resulting from the Contractor's refusal or
failure to complete the work within the contract time. (b) The
Contractor's right to proceed shall not be so terminated nor the
Contractor charged with resulting damage if:
(i) The delay in the completion of the work arises from unforeseeable
causes beyond the control and without the fault or negligence of the
Contractor, including but not restricted to acts of nature, acts of
the public enemy, acts of the Commonwealth in either its sovereign or
contractual capacity, acts of another contractor in the performance
of a contract with the Commonwealth, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes, unusually severe
weather, or delays of subcontractors or suppliers of any tier arising
from unforeseeable causes beyond the control and without the fault or
negligence of both the Contractor and such subcontractors or
suppliers; and (ii) The Contractor, within ten (10) days from the
beginning of any such delay (unless the Contracting Officer grants a
further period of time before the date of final payment under the
contract), notify the Contracting Officer in writing of the cause of
delay. The Contracting Officer shall ascertain the facts and the
extent of the delay and extend the time for completing the work when,
in his judgement, the findings of fact justify such an extension and
his findings shall be final, subject only to appeal as provided in
the "Disputes and Remedies" clause.
(c) If the Commonwealth terminates the Contractor's right to proceed under
paragraph (a), the resulting damage will consist of liquidated damages
until such reasonable time as may be required for final completion of the
work, together with any increased costs occasioned the Commonwealth in
completing the work.
(d) If the Contractor is in default under paragraph (a), but the
Commonwealth does not terminate the Contractor's right to proceed, the
resulting damage will consist of applicable liquidated damages until the
work is completed or accepted.
(e) The Contractor shall be in default of the Contract, and the
Contracting Officer may immediately and without other notice, terminate
the Contractor's right to proceed with the Contract through written notice
to the Contractor of default termination, upon a determination by the
Contracting Officer that, related to this particular contract, any of the
following has occurred--
(i) The Contractor has committed any breach of ethical standards as
defined in the Contract Documents, the CNMI Procurement Regulations,
or other applicable law. (ii) The Contractor has participated in any
violation of the rules or regulations in the CNMI Procurement
Regulations to the disadvantage of the Commonwealth. (iii) The
Contractor has colluded with other potential awardees of the Contract
or with government employees to the disadvantage of the Commonwealth.
(iv) The Contractor knowingly requests and/or receives payment to
which it is not entitled under the specific terms of the Contract.
(v) The Contractor accepts payment with knowledge that government
employees or officials authorizing the payment have not complied with
the terms of the Contract or applicable law.
(f) If, after notice of termination of the contractor's right to proceed
under any-of the provisions of this clause, it is subsequently determined
by the Contracting Officer (or, upon review of the Contracting Officer's
decision, by an authorized administrative or judicial body) that the
Contractor
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was not in default under the provisions of this clause, or that the delay
was excusable under the provisions of this clause, then the rights and
obligations of the parties shall be the same as if the notice of
termination had been issued pursuant to the "Termination for the
Convenience of the Commonwealth" clause. This paragraph shall provide the
exclusive remedy for a wrongful termination for default.
(g) Any disagreement of the Contractor to any action taken by the
Commonwealth under this clause shall be a dispute within the meaning of
the "Disputes and Remedies" clause.
(h) The rights and remedies of the Commonwealth provided in this clause
are in addition to any other rights and remedies provided by law or under
the Contract.
22. TERMINATION FOR THE CONVENIENCE OF THE COMMONWEALTH
(a) Termination. The Contracting Officer may, when the interests of the
Commonwealth so require, terminate this contract in whole or in part, for
the convenience of the Commonwealth. The Contracting Officer shall give
written notice of the termination to the Contractor specifying the part of
the contract terminated and when the termination becomes effective.
(b) Contractor's Obligations. The Contractor shall incur no further
obligations in connection with the terminated work and, on the date set in
the notice of termination, the Contractor will stop work to the extent
specified. The Contractor shall also terminate outstanding orders and
subcontracts as they relate to the terminated work. The Contractor shall
settle the liabilities and claims arising out of the termination of
subcontracts and orders connected with the terminated work. The
Contracting Officer may direct the Contractor to assign the Contractor's
right, title, and interest under terminated orders or subcontracts to the
Commonwealth. The Contractor must still complete the work not terminated
by the notice of termination and incur obligations as are necessary to do
so.
(c) Right to Supplies. The Contracting Officer may require the Contractor
to transfer title and deliver to the Commonwealth in the manner and to the
extent directed by the Director of Procurement and Supply:
(i) Any completed supplies; and
(ii) Such partially completed supplies and materials, parts, tools,
dies, jigs, fixtures, plans, drawings, information, and contract
rights (hereinafter called "manufacturing material") as the
Contractor has specifically produced or specially acquired for the
performance of the terminated part of the Contract.
(d) The Contractor shall, upon direction of the Contracting Officer,
protect and preserve property in the possession of the Contractor in which
the Commonwealth has an interest. If the Contracting Officer does not
exercise the right specified in paragraph (c) , the Contractor shall use
his best efforts to sell such supplies and manufacturing materials in
accordance with the standards of the Uniform Commercial Code of the
Northern Mariana Islands, 5 CMC ss. 2706. Utilization of this procedure in
no way implies that the Commonwealth has breached the contract by exercise
of the "Termination For Convenience of the Commonwealth" clause.
(e) Compensation. The Contractor shall submit to the Contracting Officer a
termination claim specifying the amount due because of the Termination For
Convenience together with cost and pricing data to the extent required. If
the Contractor fails to file a termination claim within one (1) year from
the effective date of the termination, the Contracting Officer may pay the
Contractor, if at all, an amount set in accordance with paragraph (g).
(f) The Contracting Officer and the Contractor may agree to a settlement
provided the Contractor has filed a termination claim and that the
settlement does not exceed the total contract price plus settlement costs
reduced by payments previously made by the Commonwealth, the proceeds of
any
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sales and supplies and manufacturing materials under paragraph (d), and
the contract price of the work not terminated.
(g) Absent complete agreement under paragraph (f), the Contracting Officer
shall pay the Contractor the following amounts, provided payments agreed
to under paragraph (f) shall not duplicate payments under this paragraph:
(i) contract prices for supplies or services accepted under the
contract. (ii) costs incurred in preparing to perform and performing
the terminated portion of the work plus a fair and reasonable profit
on such portion of the work (such profit shall not include
anticipatory profit or consequential damages) less amounts paid or to
be paid for accepted supplies or services; provided, however, that if
it appears that the Contractor would have sustained a loss if
completed, no profit shall be allowed or included and the amount of
compensation shall be reduced to reflect the anticipated rate of
loss. (iii) cost of settling and paying claims arising out of
termination of subcontracts or orders pursuant to paragraph (b).
These costs must not include cost paid in accordance with
subparagraph (g)(ii). (iv) the reasonable settlement costs of the
Contractor including accounting, legal, clerical, and other expenses
reasonably necessary for the preparation of settlement claims and
supporting data with respect to the terminated portion of the
contract for the termination and settlement of the contracts
thereunder, together with reasonable storage, transportation, and
other costs incurred in connection with the protection or disposition
of property allocable to the terminated portion of the Contract. The
total sum to be paid the Contractor under this subparagraph shall not
exceed the total contract price plus reasonable settlement costs of
the Contractor reduced by the amount of payments otherwise made from
the proceeds of any sales of supplies and manufacturing materials
under paragraph (d), and the contract price of work not terminated.
23. LIABILITY TO THIRD PERSONS; INDEMNIFICATION; INSURANCE
(a) The Contractor shall be liable for the torts and wrongful acts of its
employees and staff members, and shall carry insurance necessary for the
protection of its employees and staff members during the life of the
Contract, and shall indemnify and hold harmless the Commonwealth from any
and all claims, demands, suits, and causes of action whatsoever involving
third parties arising out of or connected with the negligent performance
of the Contract.
(b) The Contractor and his subcontractors shall procure and thereafter
maintain workmen s compensation, general liability, builder's risk, and
comprehensive automobile liability (bodily damage) insurance, with respect
to performance under the Contract; provided, that the Contractor may, with
approval of the Contracting Officer, maintain a self-insurance program.
All insurance required pursuant to the provisions of this paragraph shall
be in such form, in such amounts, and for such periods of time, as the
Contracting Officer may, from time to time, require or approve, and with
insurers approved by the Contracting Officer.
(c) Workmen's Compensation Insurance: The Contractor's employees engaged
in any work under the Contract shall be afforded the same coverage as that
which is extended to the employees of the Commonwealth of the Commonwealth
of the Northern Mariana Islands.
(d) Comprehensive General Liability Insurance: Coverage shall have the
following minimum amounts: Personal injury, $100,000.00 each person, and
$300,000.00 each occurrence; Property damage, $50,000.00 each occurrence,
and $100,000.00 aggregate.
(e) Builder's Risk (fire and extended coverage): The Contractor shall
carry Builder's Risk (fire and extended coverage) Insurance on all work in
place and materials stored at the work site, including
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foundations and building equipment. The Builder's Risk Insurance shall be
for the benefit of the Contractor and the Commonwealth of the Northern
Mariana Islands as their interests may appear and each shall be named in
the policy or policies as an assured. Builder's Risk insurance need not be
carried on excavations, piers, footings, or foundations until such time as
work on the super structure is started and it need not be carried on
landscape work. Policies shall be in effect at all times for the full cash
value of all completed construction work, as well as materials in place and
stored at the site, whether or not partial payment has been made by the
Commonwealth of the Northern Mariana Islands. The Contractor may terminate
this insurance on building(s) taken over for occupancy by the Commonwealth
of the Northern Mariana Islands as of the date said building(s) is
accepted.
(f) Comprehensive Automobile Liability Insurance: Coverage of this
insurance for all owned, non-owned and hired vehicles shall have the
following minimum amounts: Personal injury, $100,000.00 each person, and
$300,000.00 each occurrence; Property damage, $50,000.00.
(g) The comprehensive general and automobile liability policies shall
contain a provision worded as follows:
"The insurance company waives any right of subrogation against the
Government of the Commonwealth of the Northern Mariana Islands which
may arise by reason of any payment under this policy".
(h) Prior to commencement of work under the Contract, the Contractor shall
furnish to the Contracting Officer a certificate or written statement of
the above required insurance. The policies evidencing required insurance
shall contain an endorsement to the effect that cancellation or any
material change in the policies adversely affecting the interests of the
Commonwealth in such insurance shall not be effective until 30 days after
the Contracting Officer has received written notice from the insurer, as
evidenced by return receipt of registered or certified letter.
24. SUPERINTENDENCE BY CONTRACTOR
(a) The Contractor shall give his personal superintendence to the work or
have a competent ▇▇▇▇▇▇▇ or superintendent, satisfactory to the
Contracting Officer, on the work at all times during progress, with
authority to act for him. (b) The Contractor shall employ such
superintendent, ▇▇▇▇▇▇▇ and workmen as are careful and competent, and the
Contracting Officer may demand the dismissal of any person employed by the
Contractor in, about, or upon the work who shall engage in misconduct or
be incompetent or negligent in the proper performance of duties, or
neglects or refuses to comply with the directions given, and such person
shall not be employed again thereon without the written consent of the
Contracting Officer. Should the Contractor continue to employ, or again
employ any person for whom the Contracting Officer has demanded dismissal
under this clause, the Contracting Officer may withhold all payments,
which are or may become due, or the Contracting Officer may suspend the
work until such orders are complied with.
25. RIGHTS-OF-WAY
(a) The Commonwealth will furnish all lands, easements, and rights-of-way
required for completion of the work. In acquiring easements or
rights-of-way the Government will proceed as expeditiously as possible,
but in the event all rights-of-way or easements are not acquired prior to
the beginning of construction, the Contractor shall begin work on such
lands and rights-of-way as have been acquired. No claim for damage will be
allowed by reason of the Commonwealth's delay in obtaining lands,
easements, or rights-of-way. In the event of litigation or other delays in
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acquiring rights-of-way, the time allowed herein for completion of the
work will be extended to compensate the Contractor for time actually lost
by such delay.
26. APPROPRIATENESS OF EQUIPMENT
(a) The Contractor shall furnish such equipment as is considered necessary
for the prosecution of the work in an acceptable manner and at a
satisfactory rate of progress. All equipment, tools, and machinery used
for handling materials and executing any part of the work shall be subject
to the approval of the Contracting Officer and shall be maintained in a
satisfactory working condition. Equipment used on any portion of the work
shall be such that no injury to the work, roadways, adjacent property, or
other objects will result from its use. The contract may be terminated if
the Contractor fails to provide adequate and proper equipment for the
work.
27. LAWS TO BE OBSERVED
(a) The Contractor is assumed to be familiar with all federal and local
laws, codes, ordinances, and regulations which, in any manner, affect
those engaged or employed in the work or the material or equipment used in
or upon the site, or in any way affect the conduct of the work. No pleas
of misunderstanding or ignorance on the part of the Contractor will, in
any way, serve to modify the provisions of the contract.
(b) The Contractor, at all times, shall observe and comply with all
Federal and local laws, codes, ordinances, and regulations in any manner
affecting the conduct of the work, and the Contractor and his surety shall
indemnify and save harmless the Commonwealth and all its officers, agents
and servants any claim or liability arising from or based on the violation
of any such law, code, ordinance, regulation, order, or decree, whether by
himself or his employees.
(c) The Contractor shall be responsible for reporting to the Commonwealth
Historical Preservation Office for verification and determination any
discovery encountered during execution of this contract bearing
archaeological, cultural, or historical content.
28. PERFORMANCE OF WORK BY CONTRACTOR
(a) The Contractor shall perform on the site and with his own
organization, work equivalent to at least twelve percent (12%) of the
total amount of work to be performed under the contract. If, during the
progress of the work hereunder, the Contractor requests a reduction in
such percentage and the Contracting Officer determines that it would be to
the advantage of the Commonwealth, the percentage of the work required to
be performed by the Contractor may be reduced with the written approval of
the Contracting Officer.
29. CONDITIONS AFFECTING THE WORK
(a) The Contractor shall be responsible for having taken steps reasonably
necessary to ascertain the nature and location of the work, and the
general and local conditions which can affect the work or the cost
thereof. Any failure by the Contractor to do so will not relieve him from
responsibility for successfully performing the work without additional
expense to the Commonwealth. The Commonwealth assumes no responsibility
for any understanding or presentations concerning conditions made by any
of its officers or agents prior to the execution of the Contract, unless
so stated in the contract.
(b) The Contractor shall request assistance from appropriate Commonwealth
authorities to indicate the actual locations of existing utilities to
preclude damage during construction.
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(c) The Contractor shall inquire about construction requirements from the
Technical Services Division, Department of Public Works prior to beginning
work on the project.
30. SITE INVESTIGATION
(a) The Contractor acknowledges that he has investigated and satisfied
himself as to the conditions affecting the work, including but not
restricted to those bearing upon transportation, disposal, handling and
storage of materials, availability of labor, water, electric power, roads
and uncertainties of weather, river stages, tides, or similar physical
conditions at the site, the conformations and conditions of the ground,
the character of equipment and facilities needed preliminary to and during
prosecution of the work. The Contractor further acknowledges that he has
satisfied himself as to the character, quality and quantity of surface and
subsurface materials or obstacles to be encountered insofar as this
information is reasonably ascertainable from an inspection of the site,
including all exploratory work done by the Commonwealth, as well as from
information presented by the drawings and specifications made as part of
this contract. Any failure by the Contractor to acquaint himself with the
available information will not relieve him from responsibility for
estimating properly the difficulty or cost of successfully performing the
work. The Commonwealth assumes no responsibility for any conclusions or
interpretations made by the Contractor on the basis of the information
made available by the Commonwealth.
31. DIFFERING SITE CONDITIONS
(a) The Contractor shall promptly, and before such conditions are
disturbed, notify the Contracting Officer in writing of:
(i) Subsurface or latent physical conditions at the site differing
materially from those indicated in the Contract, or; (ii) Unknown
physical conditions at the site, of an unusual nature, differing
materially from those ordinarily encountered, and generally
recognized as hindering work of the character provided for in the
Contract.
(b) The Contracting Officer shall promptly investigate the conditions, and
if he finds that such conditions do materially so differ and cause an
increase or decrease in the Contractor's cost of, or the time required for
performance of, any part of the work under the Contract, whether or not
changed as a result of such conditions, an equitable adjustment shall be
made and the contract modified in writing accordingly.
(c) No claim by the Contractor under this clause shall be allowed unless
the Contractor has given notice required in (a) above; provided, however,
the time prescribed therefore may be extended by the Commonwealth.
(d) No claim by the Contractor for an equitable adjustment hereunder shall
be allowed if asserted after final payment under this contract.
(e) The contractor shall submit all claims for equitable adjustment in
accordance with, and subject to the requirements and limitations set out
in paragraph (a) of the "Equitable Adjustment" clause.
(f) Upon written request by the Contracting Officer, the Contractor shall
submit a proposal, in accordance with the requirements and limitations set
out in paragraph (a) of the "Equitable Adjustment" clause, for work
involving contemplated changes covered by the request, within the time
limit indicated in the request or any extension of such limit as may be
subsequently granted. If, within a reasonable time after receipt of such a
proposal, the Contracting Officer orders the Contractor to proceed with
the performance of the work contemplated, the proposal submitted prior
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to the order shall constitute the Contractor's statement of the monetary
extent of claim for equitable adjustment.
32. AS-BUILT DRAWINGS
(a) Upon completion of the work to be performed under the Contract, and
before final payment is made, the Contractor shall furnish the
Commonwealth with two complete sets of "as-built" drawings. These sets
shall include "marked up" prints of the contract drawings and such
additional drawings as may be necessary to reflect the complete "as-built"
work accomplished under the Contract. The "as-built" drawings shall be
initiated at the beginning of the work and shall be maintained and kept
current by the Contractor on the job site as the work progresses and until
final completion and acceptance by the Commonwealth. Markings shall be
accomplished in red and shall be complete and legible to assure that the
information presented is readily usable. The "as-built" drawings submitted
by the Contractor will be subject to review and approval of the
Contracting Officer.
33. SHOP DRAWINGS, COORDINATION DRAWINGS, AND SCHEDULES
(a) The Contractor shall submit shop drawings, coordination drawings, and
schedules for approval as required by the specifications or requested by
the Contracting Officer as follows:
(i) Shop drawings shall include fabrication, erection and setting
drawings, schedule drawings, manufacturer's scale drawings, wiring
and control diagrams, cuts or entire catalogs, pamphlets, descriptive
literature, and performance and test data. (ii) Drawings and
schedules, other than catalogs, pamphlets and similar printed
material, shall be submitted in reproducible form with two prints
made by a process approved by the Contracting Officer. Upon approval,
the reproducible form will be returned to the Contractor, who shall
then furnish the number of additional prints, not to exceed 10,
required by the Contracting Officer.
(b) The Contractor shall submit shop drawings in catalog, pamphlet and
similar printed form in a minimum of four copies plus as many additional
copies as the Contractor may desire or need for his use or use by his
subcontractors.
(c) Before submitting shop drawings on the mechanical and electrical work,
the Contractor shall submit and obtain the Contracting Officer's approval
of such lists of mechanical and electrical equipment and materials as may
be required by the specifications.
(d) The Contractor shall check the drawings and schedules, shall
coordinate them (by means of coordination drawings wherever required by
the Contracting Officer) with the work of all trades involved before
submission and shall indicate thereon his approval. Drawings and schedules
submitted without evidence of the Contractor's approval may be returned
for resubmission.
(e) Each shop drawing or coordination drawing shall have a blank area 5" x
5", located adjacent to the title block. The title block shall display the
following:
(i) Number and title of drawing,
(ii) Date of drawing or revision,
(iii) Name of project building or facility,
(iv) Name of Contractor and (if appropriate) name of subcontractor submitting
the drawing, (v) Clear identity of contents and location of work, and (vi)
Project title and contract number.
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(f) Unless otherwise provided in this contract or otherwise directed by
the Contracting Officer, shop drawings, coordination drawings, and
schedules shall be submitted to the Contracting Officer sufficiently in
advance of construction requirements to permit no less than 10 working
days for checking and appropriate action.
(g) Except as otherwise provided in paragraph (h), approval of drawings
and schedules will be general and shall not be construed as:
(i) Permitting any departure from the contract requirements; (ii)
Relieving the Contractor of the responsibility for any errors
including details, dimensions, materials, etc.; or (iii) Approving
departures from full-size details furnished by the Contracting
Officer.
(h) If drawings or schedules show variations from the contract
requirements because of standard shop practice or for other reasons, the
Contractor shall describe such variations in his letter of transmittal. If
acceptable, the Contracting Officer may approve any or all such variations
and issue an appropriate change order. If the Contractor fails to describe
such variations, he shall not be relieved of the responsibility for
executing the work in accordance with the contract, even though such
drawings or schedules may have been approved.
34. SAMPLES
(a) After award of the contract, the Contractor shall furnish, for the
approval of the Contracting Officer, samples required by the
specifications or by the Contracting Officer. Samples shall be delivered
to the Contracting Officer or to the Architect/Engineer as specified or
directed by the Contracting Officer. The Contractor shall prepay all
shipping charges on samples. Materials or equipment for which samples are
required shall not be used in the work unless approved in writing by the
Contracting Officer.
(b) Each sample shall have a label indicating the following:
(i) Name of project building or facility,
(ii) Project title and contract number,
(iii) Name of Contractor and (if appropriate) the name of the
subcontractor, (iv) Identification of material or equipment with
specification requirement, (v) Place of origin, (vi) Name of sample
producer and brand (if any), and (vii) Samples of finished materials
shall be identified with the finished schedule requirements.
(c) The Contractor shall mail (under separate cover) a letter submitting
each sample shipment and the label information required in paragraph (b).
He shall enclose a copy of the letter with the sample shipment and send a
copy of the letter to the Commonwealth representative on the project site.
Approval of the sample shall be only for the characteristics of use named
in such approval and shall not be construed to change or modify any
contract requirement. Substitutions will not be permitted unless they are
approved in writing by the Contracting Officer.
(d) Approved samples not destroyed in testing will be sent to the
Commonwealth representative at the project site. Approved samples of
hardware in good condition will be marked for identification and may be
used in the work. Materials and equipment incorporated in the work shall
match the approved samples. Other samples not destroyed in testing or not
approved will be returned to the Contractor at his expense if so requested
at the time of submission.
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(e) Failure of any material to pass the specified test will be sufficient
cause for refusal to consider, under the Contract, any further samples of
the same brand or make of the material. The Commonwealth reserves the
right to disapprove any material or equipment which previously has proven
unsatisfactory in service.
(f) Samples of various materials or equipment delivered on the site or in
place may be taken by the Commonwealth representative for testing. Samples
failing to meet contract requirements will automatically void previous
approvals of the item tested. The Contractor shall replace such materials
or equipment found not to have met contract requirements, or there shall
be adjustment of the contract price as determined by the Contracting
Officer.
(g) Unless otherwise specified, when tests are required, only one test of
each sample proposed for use will be made at the expense of the
Commonwealth. Samples which do not meet specification requirements will be
rejected. Testing of additional samples will be made by the Commonwealth
at the expense of the Contractor.
35. INSPECTION AND ACCEPTANCE
(a) Except as otherwise provided in the Contract, inspection and test by
the Commonwealth of material and workmanship required by the Contract
shall be made at reasonable times and at the site of the work, unless the
Contracting Officer determines that such inspection or test of material
which is to be incorporated in the work shall be made at the place of
production, manufacture, or shipment of such material. To the extent
specified by the Contracting Officer, at the time of determining to make
off-site inspection or test, such inspection or test shall be conclusive
as to whether the material involved conforms to the contract requirements.
Such off-site inspection or test shall not relieve the Contractor of
responsibility for damage to or loss of the material prior to acceptance,
nor in any way affect the continuing rights of the Commonwealth after
acceptance of the completed work under the terms of paragraph (f) of this
clause, except as provided in this paragraph.
(b) The Contractor shall, without charge, replace any materials or correct
any workmanship found by the Commonwealth not to conform to the contract
requirements unless, in the public interest, the Commonwealth consents to
accept such material or workmanship with an appropriate adjustment in
contract price. The Contractor shall promptly segregate and remove
rejected material from the premises.
(c) If the Contractor does not promptly replace such material or correct
such workmanship, the Commonwealth may: (1) by contract or otherwise,
replace such material or correct such workmanship and charge the cost
thereof to the Contractor; or (2) terminate the Contractor's right to
proceed in accordance with the "Disputes and Remedies" clause.
(d) The Contractor shall furnish promptly, without additional charge, all
facilities, labor and material reasonably needed for performing the safe
and convenient inspection and test as may be required by the Contracting
Officer. All inspection and testing by the Commonwealth shall be performed
in such manner so as to not delay the work unnecessarily. Special, full
size, and performance tests shall be performed as described in the
Contract. The Contractor shall be charged with any additional cost of
inspection when material and workmanship are not ready at the time
specified by the Contractor for its inspection.
(e) Should it be considered necessary or advisable by the Commonwealth, at
any time before acceptance of the entire work, to make an examination of
work already completed, by removing or tearing out same, the Contractor
shall, on request, promptly furnish all necessary facilities, labor, and
material. If such work is found to be defective or nonconforming in any
material respect, due to the fault of the Contractor or his
subcontractors, he shall defray all the expenses of such examination and
of satisfactory reconstruction. If, however, such work is found to meet
the requirements
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of the contract, an equitable adjustment shall be made in the contract
price to compensate the Contractor for the additional services involved in
such examination and reconstruction and, if completion of the work has
been delayed thereby, he shall, in addition, be granted a suitable
extension of time.
(f) Unless otherwise provided in the Contract, acceptance by the
Commonwealth shall be made as promptly as practicable after completion and
inspection of all work required by the Contract. Acceptance shall be final
and conclusive except as regards latent defects, fraud, or such gross
mistakes as may amount to fraud, or as regards the Commonwealth's right
under any warranty or guarantee.
(g) The Contractor shall give the Contracting Officer at least 10 days
advance written notice of the date the work will be fully complete and
ready for final inspection and tests will be started within 10 days from
the date specified in the aforesaid notice unless the Contracting Officer
determines that the work is not ready for final inspection and so informs
the Contractor.
(h) The Contractor shall submit to the Contracting Officer, in writing, a
letter request for a prefinal inspection not less than 72 hours (3 days)
prior to the date of the requested inspection. The Contractor should
provide a copy of this letter to the Director, Technical Services
Division, with a date ▇▇▇▇▇ ▇▇▇▇ affixed by the Contracting Officer's
office.
36. MATERIAL AND WORKMANSHIP
(a) Unless otherwise specifically provided in the Contract, all equipment,
material, and articles incorporated in the work covered by the Contract
are to be new and of the most suitable grade for the purpose intended.
Unless otherwise specially provided in the Contract, reference to any
equipment, material, article, or patented process, by trade name, make or
catalog number, shall not be construed as limiting competition, and the
Contractor may, at his option, use any equipment, material, article or
process which, in the judgment of the Contracting Officer, is equal to
that named. The Contractor shall furnish to the Contracting Officer for
his approval the name of the manufacturer, the model number, and other
identifying data and information respecting the performance, capacity,
nature, and rating of the machinery and mechanical and other equipment
which the Contractor contemplates incorporating in the work. When so
directed, samples shall be submitted for approval at the Contractor's
expense, with all shipping charges prepaid. Machinery, equipment,
material, and articles installed or used without required approval shall
be at the risk of subsequent rejection.
(b) All work under the Contract shall be performed in a skillful and
workmanlike manner. The Contracting Officer may, in writing, require the
Contractor to remove from the work any employee the Contracting Officer
deems incompetent, careless, or otherwise objectionable.
37. OTHER CONTRACTS
(a) The Commonwealth may undertake or award other contracts for additional
work, and the Contractor shall fully cooperate with such other contractors
and Commonwealth employees and carefully fit his own work to such
additional work as may be directed by the Contracting Officer. The
Contractor shall not commit or permit any act which will interfere with
the performance of work by any other Contractor, or with the performance
of work by any Commonwealth employee.
38. SUBCONTRACTS
(a) Nothing contained in this contract shall be construed as creating any
contractual relationship between any subcontractor and the Commonwealth.
The divisions or sections of the specifications
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are not intended to direct the Contractor in dividing the work among
subcontractors, or to limit the work performed by any trade.
(b) Within ten (10) days after award of any subcontract by either the
Contractor or any of his subcontractors, the Contractor shall deliver to
the Contracting Officer a statement setting forth the name and address of
the subcontractor and a summary description of the work subcontracted.
(c) The Contractor shall be responsible to the Commonwealth for acts and
omissions of his own employees and of subcontractors and their employees.
He shall also be responsible for the coordination of the work of the
trades, subcontractors, and suppliers.
(d) The Commonwealth will not undertake to settle any differences between
or among the contractor, subcontractors, and suppliers.
39. COMMONWEALTH OCCUPANCY
(a) The Contracting Officer reserves the right of partial occupancy or use
of facilities, services, and utilities, prior to final acceptance, without
implying compliance or acceptance of any part of the project by the
Commonwealth. Prior to such occupancy or use, the Contracting Officer
shall furnish the Contractor with an itemized list of work remaining to be
performed or corrected.
(b) Costs incurred as a result of such partial occupancy or use of
facilities, services and utilities are subject to equitable adjustment
under the provisions of the "Changes" and the "Equitable Adjustment"
clauses.
(c) Necessary restoration and repair of damage resulting from partial
occupancy or use shall not be at the expense of the Contractor.
40. GUARANTEES
(a) Unless otherwise provided in the specifications, the Contractor
guarantees all mechanical and electrical work to be in accordance with the
contract requirements and free from defective and inferior materials,
equipment, and workmanship for one year after the final acceptance date
the equipment or work was placed in use by the Commonwealth.
(b) If, within any guarantee period, the Contracting Officer finds that
guarantee work needs to be repaired or changed because of the use of
materials, equipment, or workmanship which, in his opinion, are inferior,
defective, or not in accordance with the terms of the contract, he shall
so inform the Contractor in writing and the Contractor shall promptly and
without additional expense to the Commonwealth:
(i) Place in satisfactory condition all of such guaranteed work; (ii)
Satisfactorily correct all damage to equipment, the site, the
building or contents therein, which is the result of unsatisfactory
guaranteed work; and (iii) Satisfactorily correct any work, material,
or equipment that is disturbed in fulfilling the guarantee, including
any disturbed work, materials and equipment that may have been
guaranteed under another contract.
c) Should the Contractor fail to proceed promptly in accordance with the
guarantee, the Commonwealth may have such work performed at the expense of
the Contractor.
(d) Any special guarantees that may be required under the contract shall
be subject to the stipulations set forth above, insofar as they do not
conflict with the provisions of such special guarantees.
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(e) The Contractor shall obtain each transferable guarantee or warranty of
equipment, material, and installation thereof which is furnished by any
manufacturer, supplier or installer in the ordinary course of the
manufacturer's, supplier's, or installer's business or trade. In addition,
the Contractor shall obtain and furnish to the Commonwealth all
information which is required in order to make any such guarantee or
warranty to the Commonwealth in sufficient time to permit the Commonwealth
to meet any time limit requirement specified in the guarantee or warranty
or, if no time limit is specified, prior to completion and acceptance of
all work under the Contract.
(f) This clause is not intended to limit any rights that the Commonwealth
may have as provided elsewhere in the Contract, or by law.
41. MAINTENANCE OF TRAFFIC
(a) Unless the contract specifically provides for the closing of any local
road or highway to traffic while construction is in progress, all roads or
highways shall be kept open to all traffic by the Contractor. The
Contractor shall also provide and maintain in a safe condition, temporary
approaches, crossings, and intersections with roads and highways. The
Contractor shall bear all expenses for maintaining traffic over the
section of road affected by work to be done under the Contract, and for
constructing and maintaining such approaches, crossings, intersections and
any accessory features without additional compensation, except as
otherwise provided in the Contract.
42. PERMITS AND RESPONSIBILITIES
(a) Unless otherwise agreed, the Contractor shall, without additional
expense to the Commonwealth, be responsible for obtaining all necessary
licenses and permits and for complying with all applicable Federal,
Commonwealth of the Northern Mariana Islands, and municipal codes and
regulations in connection with prosecution of the work. The Contractor
shall take proper safety and health precautions to protect the work, the
workers, the public, and the property of others. The Contractor shall be
responsible for all materials delivered and work performed until
completion and acceptance of the entire construction work, except for any
completed unit of construction thereof which therefore has been accepted.
43. PROJECT SIGNS
(a) The Contractor shall provide, place, and maintain a project sign at
each site where construction operations are underway. Each sign shall be
placed as directed by the Contracting Officer. Each sign shall be 4'-0" by
8'-0" in size, be made of 3/4" marine plywood (or approved equal). The
signs shall state thereon the name of the owner, job number, job title,
Contractor, Contracting Agency, and Design Consultant. All wording and
type, and size of lettering shall be approved by the Contracting Officer.
Upon completion of the work the signs shall become the property of the
Contractor and shall be removed from the sites.
44. SPECIFICATIONS AND DRAWINGS
(a) The Contractor shall keep on the work site a copy of the drawings and
specifications and shall at all times give the Contracting Officer access
thereto. Anything mentioned in the specifications and not shown on the
drawings, or shown on the drawings and not mentioned in the specifications
shall be of like effect as if shown or mentioned in both. In case of
difference between drawings and specifications, the specifications shall
govern. In case of discrepancy either in the figures, on the drawings, or
in the specifications, the matter shall be promptly submitted to the
Contracting Officer, who shall promptly make a determination in writing.
Any adjustment by the Contractor without such determination shall be at
his own risk and expense. The Contracting Officer shall furnish from
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time to time such detail drawings and other information as he may consider
necessary, unless otherwise provided.
(b) In case of difference between small and large scale drawings, the
large scale drawings shall govern. Schedules on any contract drawing shall
take precedence over conflicting information on that or any other contract
drawing. On any of the drawings where a portion of the work is detailed or
drawn out and the remainder is shown in outline, the parts detailed or
drawn out shall apply also to all other like portions of the work.
(c) Where the word "similar" occurs on the drawings, it shall have a
general meaning and not be interpreted as being identical, and all details
shall be worked out in relation to their location and their connection
with other parts of the work.
45. STANDARD REFERENCES
(a) All documents and publications (such as, but not limited to,
handbooks, codes, standards, and specifications) which are cited in the
Contract for the purpose of establishing requirements applicable to
equipment, materials, or workmanship under the Contract, shall be deemed
to be incorporated herein as fully as if printed and bound with the
specifications of the Contract, in accordance with the following:
(b) Wherever reference is made to Interim Federal Specifications, Interim
Amendments to Federal Specifications, Interim Federal Standards, the
Contractor shall comply with the requirement set out in the issue or
edition identified in the Contract except as modified or as otherwise
provided in the specifications of the Contract. (c) Wherever reference is
made to any document other than those specified in paragraph 45(b) above,
the Contractor shall comply with the requirements set out in the edition
specified in the Contract, or, if not specified, the latest edition or
revision thereof, as well as the latest amendment or supplement thereto,
in effect on the date of the Invitation for Bids on this project, except
as modified by, as otherwise provided in, or as limited to type, class or
grade by the specifications of the Contract.
(d) Federal Specifications and Federal Standards may be obtained from the
Commonwealth ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. Inquiries regarding
"Commercial Standards", "Products Standards", and "Simplified Practice
Recommendations" should be addressed to the Office of Product Standards,
National Bureau of Standards, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. Publications of
associations referred to in the specifications may be obtained directly
from the associations.
(e) Upon request, the Contractor shall make available at the job site
within a reasonable time, a copy of each trade manual and standard which
is incorporated by reference in the Contract and which governs quality and
workmanship.
46. STANDARD DETAILS
(a) Standard Details are applicable when listed, bound with the
specifications, noted on the drawings or referenced elsewhere in the
specifications. Where the notes on the drawings indicate modifications,
such modifications shall govern.
47. MEASUREMENTS
(a) All dimensions shown on existing work and all dimensions required for
work that is to connect with work now in place shall be verified by the
Contractor by actual measurement of the existing work. Any discrepancies
between the contract requirements and the existing conditions shall be
referred to the Contracting Officer before any work affected thereby has
been performed.
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48. SURVEY MONUMENTS AND BENCH MARKS
(a) The Commonwealth has established, or will establish, such general
reference points as will enable the Contractor to proceed with work under
the Contract. The Contractor will provide new monuments, where shown or
specified. If the Contractor finds that any previously established
reference points have been destroyed or displaced, or that none have been
established, he shall promptly notify the Contracting Officer.
(b) The Contractor shall protect and preserve established bench marks and
monuments and shall make no changes in locations without written approval
of the Contracting Officer. Established reference points which may be
lost, covered, destroyed, or disturbed in the course of performance of the
work under the Contract or which require shifting because of necessary
changes in grades or locations shall, subject to prior approval of the
Contracting Officer, be replaced and accurately located (as appropriate)
at the Contractor's expense by a CNIVII licensed land surveyor.
(c) The Contractor shall verify the figures shown on the survey and site
plan before undertaking any construction work and shall be responsible for
the accuracy of the finished work.
49. PATENT INDEMNITY
(a) Except as otherwise provided, the Contractor agrees to indemnify the
Commonwealth and its offices, agents, and employees against liability,
including costs and expenses, for infringement upon any Letters Patent of
the United States and /or foreign country (except Letters Patent issued
upon an application which is now or may hereinafter be, for reasons of
national security, ordered by the Commonwealth to be kept secret or
otherwise withheld from issue) arising out of the performance of the
Contract or out of the use or disposal by or for the account of the
Commonwealth of supplies furnished or construction work performed
hereunder.
50. CONVICT LABOR
(a) In connection with the performance of work under the Contract, the
Contractor agrees not to employ any person undergoing sentence of
imprisonment at hard labor.
51. EQUAL OPPORTUNITY
(a) During the performance of the Contract-
(i) The Contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex or
national origin. The Contractor will take affirmative action to
ensure that applicants are employed, and that employees are treated
during employment without regard to their race, color, religion, sex
or national origin. Such action shall include, but not be limited to
the following layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
The Contractor agrees to post in conspicuous places, available to
employees and applicants for employment, notices setting forth the
provisions of this nondiscrimination clause.
(ii) The Contractor will in all solicitations or advertisements for
employees placed by or on behalf of the Contractor, state that all
qualified applicants will receive consideration for employment
without regard to race, color, religion, sex, or national origin.
(iii) The Contractor will send to each labor union or representative
of workers with which he has a collective bargaining agreement for
the Contract, a notice, to be provided by the Contracting Officer,
advising the labor union or worker's representative of the
Contractor's commitments under this clause, and shall post copies of
the notice in conspicuous places available to employees and
applicants for employment.
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(iv) The Contractor will comply with all provisions of Executive
Order No. 11246 of September 28, 1965, as amended, and of the rules,
regulations, and relevant orders of the President's Committee on
Equal Employment Opportunity created thereby.
(v) The Contractor will furnish all information and reports required
by Executive Order No. 11246 of September 28, 1965, as amended, and
by the rules, regulations and orders of the said President's
Committee, or pursuant thereto, and will permit access to his books,
records, and accounts by the Contracting Officer and the Committee
for purposes of investigation to ascertain compliance with such
rules, regulations, and orders.
(b) In the event of the Contractor's noncompliance with paragraph (a), the
Contract may be summarily cancelled, terminated for default, or
indefinitely suspended in whole or in part, and the Contractor may be
declared ineligible for further Commonwealth contracts, in accordance with
the applicable procedures in the Contract and the CNMI Procurement
Regulations
(c) The Contractor will include the provisions of paragraph (a) in every
subcontract or purchase order unless exempted by rules, regulations, or
orders of the President's Committee on Equal Employment Opportunity issued
pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ of September 28,
1965, as amended, so that such action with respect to any subcontractor
purchase order as the contracting agency may direct as a means of
enforcing such provisions including sanctions for noncompliance. Provided,
however, that in the event the Contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of
such direction by the contracting agency, the Contractor may request the
Commonwealth to enter into such litigation to protect the interests of the
Commonwealth.
52. UTILIZATION OF SMALL BUSINESS CONCERNS
(a) It is the policy of the Commonwealth as declared by the U.S. Congress
that a fair proportion of the purchase and contracts for supplies and
services for the Commonwealth be placed with small business concerns.
(b) The Contractor shall accomplish the maximum amount of subcontracting
to small business concerns that the Contractor finds to be consistent with
the efficient performance of the Contract.
53. WORKING HOURS
(a) It is contemplated that all work will be performed during the regular
working hours of the trades involved unless otherwise specified in the
Contract. "Regular working hours" shall mean from 7:30 a.m. to 4:30 p.m.,
Monday through Friday, except holidays.
(b) If the Contractor desires to carry on work outside regular working
hours, he shall submit an application to the Contracting Officer, and
shall allow ample time to enable satisfactory arrangements to be made by
the Contracting Officer for inspecting the work in progress. The cost of
inspection outside of regular working hours shall be borne by the
Contractor. Work performed by the Contractor at his own volition outside
of regular working hours shall be at no additional expense to the
Commonwealth. (c) If the Contractor chooses and the Contracting Officer
approves work at night, the Contractor shall light the different parts of
the work in an approved manner.
54. SOCIAL SECURITY
(a) All employees of the Contractor or his subcontractors shall be covered
under the Commonwealth of the Northern Mariana Islands Social Security
System. The employee withholding is 7.65% of the first $62,700.00 of wages
earned. The employer contribution is a like
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amount. Additional information can be obtained from the Social Security
Office, Commonwealth of the Northern Mariana Islands, Saipan.
55. ACCIDENT PREVENTION - PUBLIC SAFETY
(a) In the performance of the contract, the Contractor shall comply with
the applicable provisions of the "Commonwealth of the Northern Mariana
Islands Safety Manual", and the provisions of the U.S. Occupational Safety
and Health Act (OSHA), and shall take all precautions necessary to protect
persons and property; including, but not limited to, providing, erecting,
and maintaining all necessary barricades, suitable and sufficient red
lights, danger signals, and signs. Roads subject to interference by the
work shall be kept open or suitable detours shall be provided and
maintained by the Contractor. If directed, the Contractor shall erect such
additional warning and directional signs in connection with the work as
may be furnished by the Commonwealth. Roads closed to traffic shall be
protected by effective barricades on which shall be placed acceptable
warning and detour signs. All barricades and obstructions shall be
illuminated at night, and all lights shall be kept burning from sunset
until sunrise. The cost of compliance with this clause shall be borne by
the Contractor.
56. DEBRIS AND CLEANING
(a) The Contractor shall, during the progress of the work, remove and
dispose of the resultant dirt and debris and keep the job site clean.
(b) Upon completion of the work, the Contractor shall remove from the
vicinity of the work all plant, buildings, rubbish, unused materials,
concrete forms and other like material and construction equipment
belonging to him or used under his direction during construction, except
as otherwise directed, and in the event of his failure to do so to the
satisfaction of the Commonwealth, the same may be removed by the
Commonwealth or otherwise, at the expense of the Contractor, and his
surety or sureties shall be liable therefore.
57. SANITATION
(a) Adequate sanitary conveniences of an approved type for the use of
persons employed on the work, and properly secluded from public
observation, shall be provided and maintained by the Contractor in such a
manner and at such points as shall be required or approved by the
Contracting Officer. These conveniences shall be maintained at all times
without nuisance, and this shall be strictly enforced. Upon completion of
the work, they shall be removed from the premises, leaving the premises
clean and free from nuisance.
58. PROTECTION OF EXISTING VEGETATION, STRUCTURES, UTILITIES, AND IMPROVEMENTS
(a) The Contractor shall preserve and protect all existing vegetation such
as trees, shrubs and grass on, or adjacent to, the site of work which is
not to be removed and which does not reasonably interfere with the
construction work. Care shall be taken in removing trees authorized for
removal to avoid damage to vegetation deemed to be in place. Any limbs or
branches of trees broken during such operations or by the careless
operation of equipment, or by workmen, shall be trimmed with a clean cut
and painted with an approved tree pruning compound as directed by the
Contracting Officer.
(b) The Contractor shall protect from damage all existing improvements and
utilities at or near the site of the work, the location of which is made
known to him, and will repair or restore any damage to such facilities
resulting from failure to comply with requirements of the Contract or the
failure to
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exercise reasonable care in the performance of the work. If the Contractor
fails or refuses to repair any such damage promptly, the Contracting
Officer may have the necessary work performed and charge the cost thereof
to the Contractor.
59. STORM PROTECTION
(a) The Contractor, at no additional cost to the Commonwealth, shall be
responsible for the security and safety of the construction work and the
site, including the Contractor's camp site, when warnings of winds of ▇▇▇▇
force are issued. ▇▇▇▇ winds are defined as having a sustained velocity of
34 knots (39 MPH) or greater and include winds of tropical storms and
typhoon intensity.
(b) Satisfactory job site clean-up is the initial, basic, day-to-day
minimal preparation the Contractor can make for winds of destructive
force. When warnings of winds of ▇▇▇▇ force are issued, the Contractor
shall carry out, without delay, all directives concerning securing action
to be taken which may be issued to him by the Contracting Officer or his
designated representative. This preparation is in accordance with the
contract terms and every practicable precaution shall be taken to minimize
the danger to persons; to prevent damage to work in place, materials,
supplies, equipment, adjacent structures, and property of others; and in
the public interest.
60. FAILURE TO FURNISH INFORMATION AND RECORDS
(a) If the Contractor or any subcontractor or the officers or agents of
the Contractor or any subcontractor shall refuse or have refused, expect
as provided otherwise by the terms Contract, to furnish to any
Commonwealth agency, or any establishment in the legislative or judicial
branch of the Commonwealth, information or records reasonably pertinent to
the Contract or any other Commonwealth contract in connection with which
the Contractor or any such subcontractors has or shall have performed work
or furnished materials or supplies or undertaken so to do, the following
action may be taken:
(b) In the case of a refusal by the Contractor, its officers or agents,
the Commonwealth may, after affording an opportunity to explain or justify
such refusal, terminate the Contractor's right to proceed with the work
under the Contract and thereupon the Commonwealth may avail itself of the
rights and remedies provided in the "Termination for Default" clause, in
addition to any other rights and remedies provided by law or under the
Contract.
(c) In the case of a refusal by a subcontractor, its officers or agents,
the Commonwealth may, after affording an opportunity to explain or justify
such refusal, require the Contractor to terminate the subcontract without
cost to the Commonwealth, or if the Contractor fails or refuses to effect
such termination, the Commonwealth may terminate the Contractor's right to
proceed with the work under the Contract and thereupon the Commonwealth
may avail itself of the rights and remedies referred to in the
"Termination for Default" clause.
61. PERMISSION TO ENTER THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS (a)
Permission to enter the Commonwealth of the Northern Mariana Islands must
be secured from the CNMI Department of Commerce and the CNMI Department of
Labor and Immigration, by filling out the requisite CNMI standard forms.
62. TRANSPORTATION AND LODGING EXPENSE
(a) If the Contractor utilized nonresident labor as defined in Title 49 of
the CMI Code, and if the Contractor provides either transportation,
lodging or lodging expense, or room or board expenses to any such
employee, then such Contractor shall provide the same benefits to resident
employees, as defined in
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Title 49; provided, however, that transportation, lodging, or lodging
expenses; or room or board expenses need not be provided when a resident
employee maintains his principal place of residence within normal
commuting distance, as defined by regulations implementing Public Law No.
4C-49, from his place of employment with such Contractor.
63. OFFICIALS NOT TO BENEFIT
(a) No member of Congress of the United States, member of the
Commonwealth of the Northern Mariana Islands Legislature or the
Governor of the Commonwealth of the Northern Mariana Islands shall be
admitted to any share of the Contract, or to any benefit that may
arise therefrom; but this provision shall not be construed to extend
to the Contract if made with a corporation for its general benefit.
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