|
<br />'.
<br />
<br />. .
<br />.
<br />
<br />.
<br />
<br />44092
<br />
<br />eertltled mall. retum receipt requested> of
<br />Intent to terminate. and (2) an opportunIty
<br />tor consultation with the terminating Party
<br />before LtnnlnaUon.
<br />(e) If the owner termlna.tes for default, an
<br />equitable adjustment In the price provided
<br />for in this agreement shall be made, but (1)
<br />no amount shall be allowed for antleipated
<br />~ront on unpez:fonned services or other
<br />work. and (2) any payment due to the engJ.
<br />neer at the time of termlnatJon may be ad.
<br />Justed to the extent of any adcUtlonal cooLs
<br />the owner lncurs bffause of the engineer's
<br />default. II the engineer terminates for de.
<br />fault or If the owner terminates for conven.
<br />fence. the equitable adjustment _shall In.
<br />elude a reasonable prottt tor services or
<br />other. work performed. The equitable ad.
<br />Justment for any tenn1natton shall provide
<br />for payment to the engineer tor services
<br />rendered and expenses incurred before the
<br />tenntnatJon. in addition to termlnatJon set.
<br />tlement costs the engineer reasonably
<br />Incurs relating to commItments which had
<br />become finn before the termination.
<br />(d) Upon, receIpt of a termlnaUon acUon
<br />under paragraphs (a) or (b) above. the engi.
<br />neer shall (1) PTompUy discontinue all serA
<br />\'tees atfected (unless the notice directs oth-
<br />erwise). and (2) deUver or otherwise make
<br />e.vallable to the owner all da.ta., drawIngs.
<br />speeJ.fJcaUons. reports. estimates. su:rn..mar-
<br />lea. and such other information and materiA
<br />als as the engineer may have accumulated
<br />In performing thLs agreement. whether com-
<br />pleted or In process.
<br />(e) Upon tennlnation under paragraphs
<br />(a) or (b) above. the owner may take over
<br />the work and prosecute the same to comple-
<br />tion by agreement with another party or
<br />otherwIse. Any work the owner takes over
<br />for completion will be completed at the
<br />owner's risk. and the owner will hold harm.
<br />less the engineer from all claims and dam-
<br />ages arising out oll1nproper use of the engi-
<br />neer's work.
<br />(n It, after termlne.Uon for fallure of the
<br />engineer to tuUlIl contractual Obligations. It
<br />Is determined that the engineer had not so
<br />fafled, the termination shall be deemed to
<br />.have been effected for the convenIence of
<br />the owner. In such event. adjustment of the
<br />Price provided for In thls agreement shall be
<br />made as paragraph ec) 01 this clause pro-
<br />videa.
<br />
<br />S. REMEDIES
<br />
<br />Except as this agreement otherwise pro.
<br />vides. sJl c.laima. counter-clalms, disputes,
<br />and other matters in qut'sUon bt>twt'f'n the
<br />owner and the engIneer arIsing ouL of or re-
<br />elating to . this agreement or the breach Of. It
<br />will be decided by arbitration It the pa.r:tJes
<br />hereto mutually &Bree, or In 8 court of com-
<br />petent JurisdictIon wJthln the Slate In
<br />which the. owner is Joea.ted.
<br />
<br />f. PAYMENT
<br />
<br />(a) Payment shall be made in accordance
<br />With the pe.yment schedule Incorporated in
<br />this agreement N soon as Practicable upon
<br />submJssJon ot statements requesting pay.
<br />blent ,by the engineer to the owner. Uno
<br />such payment schedule is' Incorporated In
<br />this agreement. the payment provIsions of
<br />paragraph (b) of this clause shall apply.
<br />. (b) The engineer may request IDonthly
<br />prolJI'eSS payments and the owner shall
<br />tnake thetn as soon as practicable UPOn BUD-.
<br />tnJss10n of statements requesting payment
<br />by the engineer to the Qw:ner. When such
<br />progress payments are tnade, the owner IDay
<br />
<br />RULES ANDREGULAnONS
<br />
<br />wIthhold up to ten (.l0) percent 01 the vou.
<br />chered amount unUl satisfactory completion
<br />by the engineer of work and serv1ces withIn
<br />a step Called for under this agreement.
<br />When the owner determines that the work
<br />under thts agreement or any specJfled task
<br />hereunder is' substantially complete and
<br />that the amount ot retatned percentages is
<br />In excess of the amount considered by him
<br />to be adequate lor his protection. he shall
<br />release to the engineer such excess amount.
<br />(e) No payment request made under para-
<br />graph (a) or (b) of this clause shsJl exceed
<br />the estimated amount and value of the work
<br />and services pertonned by the engineer
<br />under this agreement. The engineer shall
<br />prepare the estimates of work performed
<br />and shall supplement them with such sup..
<br />. POrting data as the owner may requIre.
<br />(d) Upon satisfactory completion of the
<br />work performed under thls agreement., as a
<br />condItion precedent to final payment under
<br />thIs agreement or to settlement upon terml.
<br />nation of the agreement, the engineer shall
<br />execute and delJver to the owner a release
<br />ot aU claims against the owner arising under
<br />or by virtue ot this agreement, other than
<br />such claims. If any. 'as may be specJtlca1ly
<br />exempted by the engineer from the oper.
<br />aUon .01 the release In stated amounts to be
<br />set forth therein. .
<br />
<br />8. PRon:cr DESIGN
<br />
<br />(al In the pertonnance of this agreement.
<br />the engineer shall. to the extent practicable,
<br />provide for maxImum use of'structures. ma-
<br />chines, products, materJals, construction
<br />meUlods. and equipment which are readily
<br />avallable through competitIve procurement,
<br />or through standard or proven prOduction
<br />techniques. methods. and. processes, consist.
<br />ent wIth 40 CFR 38.938-3 and 38.938-13 in
<br />effect on the date of execution of this agree_
<br />ment. except to the extent to which iilnova-
<br />tive technolOgy may be used under 40 CFR
<br />35.908 In effect on the date of execution ot
<br />this agreement.
<br />(b) The engIneer she.lJ not, in the perform.
<br />ance of the work under this agreement, pro-
<br />duce a design or speclficatJon which wouJd
<br />require the use of structures. machines.
<br />products. materials, construction methods.
<br />equipment. or processes. which the engineer
<br />knows to be available only from 8 sole
<br />source, unless the engineer has adeque.tely
<br />JUBtitled the use of a sole source In wrltlng.
<br />Cc) The engineer shall not, In the perform.
<br />Bnce of the work under this agreement. pro-
<br />duce a dt'sign or speclflcatlon whIch would
<br />be restrictive tn violation of see." 204(a)(6) of
<br />the Clean Water Act. This statute requires
<br />that no specification for bIds or statement
<br />of work shall be written In such a manner as
<br />to contain proprJetary, exclUSionary. or tns-
<br />Criminatory reqUirements other than those
<br />based Upon .performance, unless such re..
<br />quirements are necessary to teat or demon-
<br />strate a specJfJc thins. or to prOvide for nee-
<br />essary tnterchangeabUJty of parts and
<br />equIpment, or at least two brand names or
<br />trade names of comparable QusJlty or utility
<br />are listed and are followed by the words "'or
<br />eQual:'Wlth regard to materials, 11 B single
<br />material ls specitled. the engineer must be
<br />prepared to substantiate the basis for the
<br />selection 01 the material.
<br />(d) The en81neer shall report to the owner
<br />any sole-source or restrictive design or speci-
<br />fication giving the reason or reasons Why It
<br />Is necessa.ry to restrict the desIgri or sJ)eClfi.
<br />cation.
<br />
<br />(e). The engineer shall not knowingly
<br />specIfy or approve the performance of work
<br />at a facility which is In violation of clean air
<br />ur water standards and which Is listed by
<br />the Director of the EPA Ottlce of Federal
<br />ActJvttles under 40 CPR Part 15.
<br />
<br />9. AUDIT; ACCESS TO RECO~S
<br />
<br />(a) The engineer shall maJnta1n hooks.
<br />records, documents. and other evidence dI.
<br />rectly pertinent to pel'formance on EPA
<br />grant work under this agreement in accord-
<br />ance wIth generally accepted accounting
<br />princIPles and practices conslstentl)' ap.
<br />piled, and 40 CFR 30,808. 30,808. and 38.035-
<br />7 In etrect on the date of execution of this
<br />agreement.. The engineer shall also main.
<br />tafn the financial information and data used
<br />by the engineer in the preparation or sup.
<br />POrt of the cost submission required under
<br />'40 CPR 35.937-6(bl in effect on the date of
<br />execution ot tills agreement and a copy of
<br />the cost summary submitted to the owner.
<br />The U.S. EnvIronmental Protection Agency,
<br />the Comptroller General of the United
<br />States. the U.S. Department of LabOr.
<br />owner. and [the State water poJlution con-
<br />trol agencyl or any of their duly authorized
<br />representatives shall have. access to such
<br />books. records, documents, and other e...l.
<br />dence lor InspecUon. audit. and -copying.
<br />The engineer will provide proper fe.clllt1es
<br />tor such access and InsJleCtlon.
<br />(b) The engineer agrees to include para.
<br />graphs (a) through (el of thLs clause ,In all
<br />his contracts and all tier subcontracts dI.
<br />rectly related to project perfonnance that
<br />are In excess 'of $10.000.
<br />(c) Audits conducted under thts provfslon
<br />shaJl be in accordance wIth generally ae.
<br />cepted auditing standards and established
<br />procedures and guldeUnes ot the reviewing
<br />or audit agency<Jes).
<br />(d) The engineer agrees to the disclosure
<br />of all lnlonnation and reports resulting
<br />from access to records under paragraphs (a)
<br />and (b) of this' clause, to any of the agencIes
<br />referred to in paragraph (a). provided that
<br />the engineer is aftorded the opportunlt,Y for
<br />an audit exIt conference and an opportunity
<br />to comment and submit any support!ng doe.
<br />umentatIon on the pertinent POrtions pI the
<br />draft audIt report and that the finoJ audit
<br />report wiJIlnclude written comments of rea.
<br />80nable length, U any, of the engineer.
<br />(e) The engmeershall malnteJn.and make
<br />e.vaUable records under paragraphs (a) and
<br />(b) of this cJause during perfonnance on
<br />EPA grant work under this agreement and
<br />until 3 years from the date of finoJ EPA
<br />grant payment lor the project. In addItion.
<br />those records which relate to any "Dlspute"
<br />appeal under an EP A grant agreement, to
<br />lltlgatlon, to the settlement of claims arts.
<br />Ing out of such performance, or to costs or
<br />Items to wh1eh an audlt exception has been
<br />taken, shall be maintained and ma.cle avaUa.
<br />ble untU 3 years after the date of resolution
<br />of such appeal, litigation. claim. or excep.
<br />tlon.
<br />
<br />10. PRICE RZtJVCTION Foa DD'EC1'IVE COBr oa
<br />PRtCING DATA
<br />
<br />(Thll c14U8e u applicable fI the amount 01
<br />thu agreement e:ccud8 $100,000.)
<br />(a) If the owner or EPA determines that
<br />any price, Including profit, negotiated in
<br />connection with this .agreement or any cost
<br />reimbursable under this agreement was 1n~
<br />creaSed by any sIgni11cant sums because the
<br />engineer OJ: any subcontractor furnished In.
<br />complete or tnaccurate cost or pricing data
<br />
<br />I
<br />I.
<br />I:
<br />.:
<br />Ii
<br />
<br />FEDERAl. _ISTER, VOL 43. Il1O. I_WEDHESDAY, SEPTEMIlEl 27, 1978
<br />
|