2023A-11431-CHC-ROC Notice of Hearing and Packet MAILED
2023A-11431-CHC-ROC · Registrar of Contractors · 2023-12-04
REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Thomas Shepherd , Case No. 2023-11431 COMPLAINANT, Docket No. 2023A-11431-CHC-ROC v. NOTICE OF HEARING ON CONTESTED CASE ABCO Solar Inc License No. ROC 258378,
RESPONDENT.
This Notice of Hearing is issued under A.R.S. § 41-1092.05(D).
HEARING INFORMATION The hearing is set for:
January 16, 2024 9:00 AM Sondra Vanella Google Meet. A link will be provided directly from The Office of Administrative Hearings. Go to www.azoah.com to request to appear in-person.
If you have requested to appear in-person at the hearing, the hearing will be held at 1740 W Adams Street, Phoenix, AZ 85007.
You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be
prepared to present evidence, including witness testimony and documents, in support of your case.
STATEMENT OF LEGAL AUTHORITY AND JURISDICTION The State of Arizona has determined that the licensing and regulation of construction contractors is a proper state function, and has vested authority in the Registrar of Contractors to administer Title 32, Chapter 10 of the Arizona Revised Statutes. A.R.S. §§ 32-1101 et seq. All hearings for alleged violations of Title 32, Chapter 10 are conducted under Title 41,
Chapter 6, Article 10. A.R.S. § 32-1156.
The statutes and rules governing the hearing can be found at: Arizona Revised
Statutes §§ 41-1092 to -1092.12, and Arizona Administrative Code R2-19-101 to -122.
PARTICULAR ARIZONA STATUTES AND RULES INVOLVED The statutes and rules the Respondent is alleged to have violated are cited in the
complaint and citation, which were served on the Respondent on November 3, 2023. SHORT AND PLAIN STATEMENT OF THE MATTERS ASSERTED The complaint and citation allege that the Respondent committed the following act(s):
Charge: 1 A.R.S. § 32-1154(A)(1)
THE PARTIES TO THE ADMINISTRATIVE HEARING
Because Respondent is a licensee and is charged with an act(s) or omission(s) that is cause for the suspension or revocation of a license, Respondent is a party to this case and will be a party to the hearing. Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will be a party to the hearing.
Respondent and Complainant, as the parties to the hearing, will present evidence and
argument to the administrative law judge.
The Registrar’s assigned investigator will appear as a witness at the hearing.
RIGHT TO BE REPRESENTED The parties to the administrative hearing may choose to be represented by an attorney. A.R.S. § 41-1092.07(B). If one of the parties is a company, the company may be represented by an officer or employee if that person satisfies the conditions set forth in A.R.S. § 32- 1156(B).
CHANGE OF ADDRESS Each party must inform the Registrar and the Office of Administrative Hearings of any change of address within five (5) days of the change. A.R.S. § 41-1092.04.
HEARING PROCEDURES AND RULES The administrative hearing will be conducted in accordance with A.R.S. §§ 41-1092 to -1092.12, and A.A.C. R2-19-101 to -122. The parties should review the statutes, rules, and processes governing the administrative hearing. Copies of the statutes, rules, and articles regarding the administrative hearing process can be found at https://www.azoah.com/.
REGISTRAR’S APPEARANCE BY VIDEO CONFERENCE OR TELEPHONE The Registrar’s investigators, employees, and attorneys will appear at the hearing via video conference or telephone unless requested by a party to appear in-person. Requests for the Registrar’s investigators, employees, or attorneys to appear in-person must be filed with the Registrar and the Office of Administrative Hearings no later than seven (7) calendar days prior to the hearing date.
HEARING PACKET In the interests of administrative efficiency, the Registrar compiles and discloses
certain documents to the parties and the Office of Administrative Hearings. These documents
are attached to this Notice of Hearing as the “Hearing Packet.” If any party wishes to submit
additional evidence, they must do so during the hearing after completing a disclosure statement. See “Disclosure Statement” section below. SUBPOENAS FOR TESTIMONY FROM A WITNESS OR DOCUMENTS The parties to the hearing must be prepared to present evidence in support of their
case. If a party wants to obtain testimony from a witness or documents not in the party’s
possession, the party must prepare and file a written subpoena for the Administrative Law
Judge to review and sign, if approved. A.R.S. § 41-1092.07(C). Forms for requesting a
subpoena can be found on the Office of Administrative Hearings’ website at www.azoah.com. The party seeking a subpoena must serve notice on all the parties to the hearing, and on the Registrar. A.R.S. § 41-1092.04.
DISCLOSURE STATEMENT At least seven calendar days before the hearing, each party must prepare and serve a
disclosure statement on all other parties, and file it with the Office of Administrative Hearings.
A.A.C. R4-9-118; A.A.C. R2-19-108. The disclosure statement must include any exhibit the
party will use at the hearing. A party’s failure to timely disclose any witness or exhibit, without good cause, may result in the administrative law judge excluding those witnesses or exhibits from being used at the hearing. A.A.C. R4-9-118(C). A sample disclosure form is available on the Registrar’s website at https://roc.az.gov/content/prehearing-disclosure- statement.
CHANGING THE HEARING DATE
The date of the hearing may only be advanced or delayed on the agreement of the parties or on a showing of good cause. A.R.S. § 41-1092.05(C). The date of the hearing may be changed by filing a written agreement of the parties to change the date of the hearing. The written agreement must be filed with the Office of Administrative Hearings, directed to the assigned Administrative Law Judge, and transmitted to the Registrar and all other parties. The assigned Administrative Law Judge may be found on the Office of Administrative Hearings’ web portal at www.azoah.com If a party would like to move the date of the hearing without agreement of all parties, the party must file a written motion with the Office of Administrative Hearings, directed to the
assigned Administrative Law Judge, and transmit a copy to the Registrar and all other parties.
The motion must state in detail good cause for why the date of the hearing should be advanced
or delayed, and the position of all other parties regarding the advancement or delay.
A party may also file a motion asserting a right to an expedited hearing upon a showing of extraordinary circumstances or the possibility of irreparable harm. A.R.S. § 41-1092.05(E).
RESOLUTION SHORT OF ADJUDICATION
In any case which is resolved or settled by the parties, or which is withdrawn by the
Complainant without objection from Respondent after the Notice of Hearing is issued, the parties must notify the Office of Administrative Hearings of the resolution or settlement. Any such cases will be listed on the Registrar’s website and its records under the category: “Closed Complaints – Resolved/Settled/Withdrawn.” Dated December 4, 2023.
By: /s/ Erika Hoskin Erika Hoskin Legal Secretary Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail December 4, 2023 to:
Respondent(s) ABCO Solar Inc 2505 N Alvernon Way Tucson, AZ 85712
Complainant(s) Thomas Shepherd 11044 N Canada Ridge Drive Oro Valley, AZ 85737
Copy sent electronically this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar
Case No. 2023-11431 /
Katie Hobbs, Governor Martin Quezada, Director
Hearing Packet FAQ What is the Hearing Packet?
The Hearing Packet is a packet of certain documents collected or issued by the Registrar over the course of its investigation.
Who gets the Hearing Packet?
The Hearing Packet is assembled and distributed to all parties and to the Office of Administrative Hearings (“OAH”) prior to an administrative hearing.
What types of cases does the Registrar prepare a Hearing Packet for?
The Registrar prepares a Hearing Packet for Complainant-Handled Cases and No-Pay Cases. Note: If the Docket Number on the Notice of Hearing contains a “CHC” or “NPC”, your case is a Complainant-Handled Case or a No-Pay Case.
What is in the Hearing Packet?
The Hearing Packet contains essential case-specific documents and at a minimum will include the following documents:
● Original complaint;
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ
Katie Hobbs, Governor Martin Quezada, Director
● Citation; and ● Answer.
The Hearing Packet will also contain the following documents (if applicable):
● Jobsite inspection notices, notes, and photos; ● Written directives; and ● Compliance inspection notices, notes, and photos.
What if there are documents missing from the Hearing Packet?
If there is any evidence you submitted to the Registrar that are not included in the Hearing Packet it is your responsibility to introduce that evidence at the administrative hearing. Note: The administrative law judge assigned to your case does not have access to the entire Registrar record.
If there is additional evidence you submitted to the Registrar during the investigation that you also want to introduce as evidence during your hearing, it is your responsibility to:
● Properly disclose that evidence to the other party; and ● Introduce the evidence during your hearing.
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ
Katie Hobbs, Governor Martin Quezada, Director
How do I disclose evidence I intend to use at a Hearing?
You must properly disclose any and all documents and witnesses you intend to use at your hearing according to the Registrar’s Prehearing Disclosure Rules. See Arizona Administrative Code Section R4-9-118.
A sample prehearing disclosure form and instructions are provided to the parties by the Registrar.
How do I obtain documents I previously submitted to the Registrar?
If you previously submitted documents to the Registrar and need a copy of these documents, please contact the Registrar’s Legal Department or submit a public records request at https://roc.force.com/AZRoc/s/roc-public-request.
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ
REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Thomas Shepherd, Case No. 2023-11431 COMPLAINANT, v. ABCO Solar Inc. CITATION License No. ROC 258378, RESPONDENT.
The Registrar issues this Citation to ABCO Solar Inc. (“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by November 18, 2023, then under A.R.S. § 32-1155(C), Respondent’s failure to answer may be deemed an admission of the act or acts charged in the underlying complaint, and the Registrar may then suspend or revoke Respondent’s license(s). THE WRITTEN COMPLAINT On October 2, 2023, Thomas Shepherd (“Complainant”) filed a written complaint with the Registrar. A copy of that Complaint is attached to this Citation. A FORMAL STATEMENT OF THE CHARGES AGAINST RESPONDENT The Registrar investigated this matter and finds cause to charge Respondent with violation(s) of Title 32, Chapter 10 of the Arizona Revised Statutes. Respondent is charged with violating: Charge :1 A.R.S. § 32-1154(A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. of 5
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602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 If the matter proceeds to a hearing and the administrative law judge determines that any of the charges listed above are supported by a preponderance of the evidence, then Respondent’s license(s) may be subject to suspension or revocation, and Respondent may be subject to other penalties provided by law, including civil penalties under A.R.S. §§ 32-1154(E) and (F). FILING A WRITTEN ANSWER Respondent must appear by filing with the Registrar a written answer to the citation and complaint showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). Respondent’s written answer should contain the heading “Written Answer to Citation and Complaint” and should include the case number, which is Case No. 2023-11431. How to File a Written Answer: Respondent’s written answer may be submitted in the following ways: In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 Email: [email redacted]
The Registrar’s normal office hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. If Respondent submits a written answer by mail, it is not filed with the Registrar until the Registrar actually receives it. Deadline for Filing a Written Answer: Respondent must file a written answer with the Registrar no later than November 18, 2023. This deadline is calculated under A.R.S. §§ 32-1155(A) and (B), which provides a deadline ten days after service of the Citation. Service of the Citation and Complaint is complete five days after the Registrar mails a copy of the Citation and Complaint to Respondent’s latest address of record in the Registrar’s office. of 5
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602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Consequences for Failing to File a Written Answer: If Respondent fails to answer, Respondent’s failure may be deemed an admission of the act or acts charged in the written complaint. A.R.S. § 32-1155(C). The Registrar may then suspend or revoke Respondent’s license(s). THE ADMINISTRATIVE HEARING If Respondent files a timely written answer contesting any charges in the Complaint, then the Registrar will request the Office of Administrative Hearings set a date for an administrative hearing and will notify all the parties at least 30 days before that hearing. A.R.S. § 41-1092.05(D). INVESTIGATOR’S APPEARANCE AS A WITNESS The Registrar’s assigned investigator will appear as a witness at the hearing. If either party demands the attendance at the hearing of any other person, that party must obtain and serve a subpoena in compliance with the rules and processes established by the Office of Administrative Hearings. RESPONDENT’S RIGHT TO REQUEST AN INFORMAL SETTLEMENT CONFERENCE Under A.R.S. § 41-1092.06, if Respondent submits a request to the Registrar for an informal settlement conference, the Registrar must hold a conference within 15 days after receiving the request. Respondent’s request for an informal settlement conference must be in writing and must be filed no later than 20 days before the administrative hearing. A.R.S. § 41- 1092.06(A). The Registrar will not close or settle any case without both parties’ appearance at the Settlement Conference. The parties participating in the settlement conference must have the authority to settle the case and must waive their right to object to the participation of the Registrar’s settlement conference representative in the final administrative decision. A.R.S. § 41-1092.06(B). of 5
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602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Any statements, either written or oral, made by the parties at the conference, including a written document, created or expressed solely for the purpose of settlement negotiations, are inadmissible in the administrative hearing. A.R.S. § 41-1092.06(B). RESPONDENT’S PRIOR RECORD Under A.A.C. R4-9-117, in determining the appropriate discipline, the administrative law judge and the Registrar may consider not only facts in the current case, but also facts in prior cases and any documents regarding Respondent on file with the Registrar. Respondent’s prior disciplinary record and current license(s) status may be considered as a mitigating or aggravating factor in determining the appropriate discipline. EVIDENTIARY DISCLAIMER By issuing this Citation, the Registrar is directing Respondent to file a written answer to the Citation and Complaint, showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). This Citation does not constitute proof that any charge or allegation in Complainant’s written complaint is in fact true. This Citation does not constitute proof that Respondent violated any statutory provision or rule adopted by the Registrar. Dated November 3, 2023. By: /s/ Shaquira Adebule Shaquira Adebule Legal Assistant II Legal Department Arizona Registrar of Contractors COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, November 3, 2023 to: Respondent Certified Mail No: [number redacted] ABCO Solar Inc 2505 N Alvernon Way of 5
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602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Tucson, AZ 85712 Copy mailed by USPS First Class mail this same date to: Respondent ABCO Solar Inc 2505 N Alvernon Way Tucson, AZ 85712 Complainant Thomas Shepherd 11044 N Canada Ridge Drive Oro Valley, AZ 85737
Copy sent electronically this same date to:
Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar
Case No. 2023-11431 / SA
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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812
602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Mediation Notice
Mediation Services Mediation services are available to the parties. What is Mediation? Mediation is a method of resolving disputes where the parties can end conflict without the expense and time associated with the full administrative process. Who Participates in During mediation, a mediator will attempt to help the Mediation? parties find an optimal solution to the conflict. Both parties must agree to participate in mediation, and both parties must bring a representative to mediation that has full authority to settle the entire matter. Mediation Is Not Neither the Registrar nor the Office of Administrative Mandatory Hearings will penalize a party for not agreeing to mediation. Where do the Parties The parties will meet at the Office of Administrative Meet for Mediation? Hearings to participate in mediation. The Office of Administrative Hearings is located at 1740 W Adams St., Lower Level, Phoenix, Arizona 85007. When does Mediation can occur after the Registrar issues a citation, but Mediation Occur? before the administrative hearing. Why Should Parties Mediation can be an alternative to the full administrative Consider Mediation? process. Mediation is beneficial because it is (1) time- efficient, (2) cost-effective, (3) confidential, and (4) capable of providing flexible solutions to complex problems. How to Request If the parties wish to mediate this case, they must file a Joint Mediation Request for Mediation with the Office of Administrative Hearings. A Joint Request for Mediation is included with this Mediation Notice. REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA _________________________ Case No. _______________ COMPLAINANT,
v. JOINT REQUEST FOR MEDIATION _________________________ RESPONDENT.
REQUEST
The parties jointly request that this matter be referred to mediation in the Office of Administrative Hearings (OAH). ☐ This matter is set for hearing on __________________(date). ☐ This matter is not currently set for hearing. MEDIATION AGREEMENT By requesting this mediation and signing below, the parties understand, represent, and agree: 1. The parties are prepared to commence mediation and will be ready for mediation on _____________________(date); 2. The parties will participate in the mediation process in good faith; 3. This request for mediation is not intended to hinder or delay administrative proceedings; 4. No party will contend that the mediation limits the power of OAH and its administrative law judges to conduct an administrative hearing and issue decisions under A.R.S. §§ 41-1092 – 1092.12; 5. The parties will be courteous and respectful throughout the mediation process to all participants; 6. The mediation is completely voluntary and the principal purpose is to allow the parties a full and fair opportunity to discuss settlement; of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 7. The mediator may conduct joint and separate meetings with the parties and may suggest resolutions to the parties’ dispute, but the mediator has no authority to impose a settlement upon the parties; 8. The mediation process is confidential. Communications made, material created for or used during, and acts occurring during mediation are confidential and may not be discovered or admitted into evidence in any proceeding except as provided by A.R.S. § 12-2238; 9. The mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation except as provided in A.R.S. § 12-2238(C); 10. Neither the mediator, nor the Registrar of Contractors, nor the Office of Administrative Hearings is subject to civil liability for any act or omission in connection with any mediation service or activity except for acts involving
intentional misconduct or reckless disregard of a substantial risk of injury to the rights of others; 11. Throughout the mediation process, each party must have a representative present who will have full settlement authority to settle all claims at issue in the administrative
proceeding. 12. The mediation process will terminate when: a. The parties reach settlement; b. The mediator determines that further efforts at mediation are no longer likely
to achieve a settlement; or c. One of the parties withdraws from mediation. _____________________________________ _______________________ Complainant (or representative) Date
_____________________________________ _______________________ Respondent (or representative) Date
of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 NOTICE TO PROCEED CHECKLIST
Project: 6038-SL-23
Contractor: ABCO Solar, Inc. Contract Price: $41,482.12
Construction Agreement Executed ABCO Solar ______ TOKA _______
Transaction Privilege Tax License
100% Performance Bond
100% Payment Bond
General Liability Insurance
Worker Compensation Insurance
Builders Risk (By Owner)
TERO Compliance Plan Key Management Staff
Purchase Order Issued
X Resolution Approved - Res #06-01-23
Copy of Executed Contract to Executive Assistant (Hester Rios)
General
Environmental Clearance approved
____________________________ _________ Contract Officer Date AGREEMENT FOR CONSTRUCTION SERVICES between TOHONO O'ODHAM KI:KI ASSOCIATION and CONTRACTOR
OWNER: Tohono O’odham Ki:Ki Association (TOKA) CONTRACTOR: ABCO Solar, Inc. Baboquivari Circle/PO Box 790 2505 N Alvernon Way Sells, Arizona 85634 Tucson, AZ 85712 Telephone: 520-383-2202 Telephone: 520-777-0511 Facsimile: 520-383-2259 Email: [email redacted]
PROJECT REPRESENTATIVE: Cody Chavez PROJECT REPRESENTATIVE: Klaus Wyatt
SITE ADDRESS (THE "SITE", WHICH IS LEGALLY DESCRIBED CONTRACTOR'S LICENSE NO. (MANDATORY): ROC 258378/ ON EXHIBIT "A", ATTACHED HERETO): Specialty Dual CR-11 Electric
See Exhibit A/ 10 Solar Street Assemblies San Xavier Black Mountain NOTICE TO PROCEED DATE: TBD , 20____ Community
JOB NO.: 6038-SL-23 (Solar Street Lights) SUBSTANTIAL COMPLETION DATE: TBD , 20____
COST CODE:6038-SL-23 COMPLETION DATE: TBD , 20____
PROJECT 6038-SL-23: 10 Solar Street Light Assemblies San Xavier Black Mountain Community CONTRACT DOCUMENTS. The contract documents include, as applicable: (a) this agreement ("Contract"); (b) the drawings, plans and specifications (the "Plans and Specifications"), which were prepared by the engineering firm Transborder Engineering ("Design Professional"); and (c) the following additional documents- See Exhibits (collectively, the "Contract Documents"). The Contract Documents shall govern Contractor's performance of the Work (as defined in Section 1.03). EXCLUSIONS FROM THE WORK. The scope of Work is specifically described on Exhibit "B", attached hereto. The following tasks are specifically excluded from the Work and shall only be performed pursuant to a Change Order (as defined and provided in Article 4): N/A CONTRACT PRICE. Contractor shall perform the Work for the stipulated sum of Forty One Thousand Four Hundred Eighty Two Eight AND 12/100 DOLLARS ($41,482.12) (the "Contract Price"). COST OF WORK $39,450.00 TO TREASURY TAX $1,282.12 FREIGHT $750.00 CONTRACT TOTAL $41,482.12 PAYMENT SCHEDULE. Provided Contractor timely submits to Owner a progress payment application ("Progress Payment Application"), Owner shall make progress payments to Contractor on account of approved and certified amounts requested in a Progress Payment Application, subject to the other provisions of this Contract, within Twenty Six (26) days after Owner receives a Progress Payment Application, unless an alternative payment schedule is provided, as follows: [Insert alternative payment schedule, if applicable] ____N/A_____. Upon Final Completion (as defined in Section 2.04.03), Contractor shall submit to Owner a final payment application (the "Final Payment Application") requesting payment for the outstanding balance of the Contract Price, including any retention provided for hereunder. Owner shall make final payment to Contractor within Thirty ( 30 ) days of the date Owner receives and approves the Final Payment Application, subject to the other provisions of this Contract. RETENTION. Owner may retain from any progress payment amount owing Contractor hereunder Zero percent (0 %) of such amount. LIQUIDATED DAMAGES. Contractor shall pay Owner an amount equal to _______N/A__ AND ______/100 DOLLARS ($_N/A________) per day (the "Liquidated Damages") for each day Contractor delays in achieving Substantial Completion (as defined in Section 2.02.02), by the Substantial Completion Date. The Liquidated Damages shall begin to accrue on the first (1st) such day of delay.
DATED:
OWNER: TOHONO O'ODHAM KI:KI ASSOCIATION CONTRACTOR: ABCO Solar, Inc. a(n) AZ Corp By: Name: By: Title: Name: Title:
6038-SL-23 Construction Contract ABCO Solar ADDITIONAL TERMS AND CONDITIONS
ARTICLE 1 INDEPENDENT CONTRACTOR, REPRESENTATIONS AND WARRANTIES AND WORK
1.01 INDEPENDENT CONTRACTOR Contractor's relationship to Owner is in all respects that of an independent contractor. Contractor shall be solely responsible for the supervision, performance, coordination and control of the Work to be performed by Contractor. Contractor shall not be deemed an employee, agent or member of Owner for any purpose. Neither party shall have the right or power to bind or obligate the other party for any liabilities or obligations without the prior written consent of the other party. 1.02 REPRESENTATIONS AND WARRANTIES Contractor represents and warrants to Owner the following: (a) Contractor is financially solvent, able to pay its debts as they mature and possessed of sufficient working capital to complete the Work and otherwise perform its obligations under the Contract Documents; (b) Contractor is able, and has the requisite experience and competence, to furnish the Work and perform all of its obligations hereunder; (c) Contractor is authorized to do business in Arizona, shall at all times hold, and shall cause all persons or entities working under and through Contractor to at all times hold, appropriate registrations and licenses required by Applicable Laws, including licenses from the Arizona Registrar of Contractors; (d) Contractor's execution of this Contract and its performance hereunder is within its duly authorized powers; (e) Contractor has carefully reviewed the Contract Documents and the information furnished by Owner, has taken field measurements, as necessary, and has verified field conditions, comparing any such field measurements and conditions and other information known to Contractor with the Contract Documents, and has reported to Owner, prior to submitting Contractor's bid proposal, any error(s), conflict(s), inconsistency(ies), or omission(s) in the Contract Documents discovered during such review and verification; (f) The execution and delivery of the Contract Documents and performance of the Work will not result in any violation of, or default under, any term or provision of any other agreement, judgment or similar instrument to which Contractor is bound; (g) There are no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy reorganization or other similar proceedings pending or, to the best of Contractor's knowledge, threatened against Contractor, nor are any such proceedings contemplated by Contractor; (h) There is no complaint, litigation, investigation or proceeding pending as of the date of Contractor's bid proposal or, to the knowledge of Contractor, contemplated or threatened against Contractor as of the date of this Contract that would prevent Contractor from performing its obligations under the Contract Documents or any other instrument or document contemplated thereby or related thereto; (i) Contractor is not a partner or joint venturer with Owner in connection with the Work, and Contractor is entering into this Contract and agreeing to comply with and perform the Work in accordance with the Contract Documents voluntarily and solely for Contractor's own profit and benefit; (j) Contractor is not, nor will Contractor engage a Subcontractor of any tier to perform Work hereunder who is, an "Excluded Party" listed on the Excluded Parties List System maintained by the U.S. General Services Administration or otherwise prohibited from being involved in a covered transaction pursuant to 24 C.F.R. Part 24; and (k) If, at any time during the course of the Work, Contractor, or any representative of Contractor, learns of any facts or circumstances that would render any of the foregoing representations and warranties untrue, then Contractor shall promptly notify Owner of all such facts or circumstances. 1.03 WORK Contractor shall provide all labor, professional services, materials, machinery, fixtures, equipment, tools, supervision, coordination, direction, utilities, transportation, storage, warranties and other construction services (collectively, the "Work"), as set forth in the Contract Documents. Contractor shall install all Owner-furnished material, if any, referred to in the Contract Documents.
6038-SL-23 Construction Contract ABCO Solar The Work shall include proactive interaction and coordination with Design Professional and Owner's consultants, utility companies, governmental entities and others, as applicable, to ensure the Work is completed by the Substantial Completion Date and the Completion Date. The Substantial Completion Date and the Completion Date are hereinafter severally and collectively referred to as the "Contract Time". 1.04 CONTRACT INTERPRETATION The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. Contractor shall complete the Work in strict and absolute accordance with the Contract Documents and otherwise provide all Work not specifically described therein, but reasonably inferable therefrom, as necessary to ensure proper and timely completion of the Project. To the extent the provisions of the Contract Documents are inconsistent, the inconsistency shall be resolved by an interpretation requiring the most stringent degree of obligation and liability to Owner on the part of Contractor. All of the foregoing shall be in accordance with Owner's interpretation. ARTICLE 2 SCHEDULE, SUBSTANTIAL COMPLETION, LIQUIDATED DAMAGES AND FINAL COMPLETION 2.01 SCHEDULE Contractor shall perform all Work in accordance with the schedule attached hereto as Exhibit "C", and as progressively directed by Owner. 2.02 SUBSTANTIAL COMPLETION 2.02.01 Time is of the essence with regard to the Contract Time and all other rights and obligations described herein. Contractor shall accomplish (a) Substantial Completion by the Substantial Completion Date, and (b) Final Completion by the Completion Date. 2.02.02 "Substantial Completion" shall be deemed to have occurred on the date that the later of both of the following shall have occurred: (a) Contractor has achieved one hundred percent (100%) completion of all of the Work to Owner's reasonable satisfaction, subject only to completion of "punch list items" (which items are defined as minor and incidental items of the Work not affecting Owner's occupancy of the Project, which are capable of being completed by Contractor within thirty (30) days), and (b) a certificate of occupancy shall have been issued by all permit issuing authorities having jurisdiction over the Project or the Work. 2.02.03 The Contract Time may only be extended pursuant to a properly executed Change Order. 2.03 LIQUIDATED DAMAGES Owner will incur substantial damages if Contractor does not accomplish Substantial Completion by the Substantial Completion Date. Such damages will be extremely difficult and impracticable to ascertain. Accordingly, the Liquidated Damages are a reasonable approximation of Owner's delay damages and may be assessed by Owner as and for Liquidated Damages and not a penalty, in order to avoid costly and lengthy litigation, which would otherwise be required. Owner may deduct all Liquidated Damages it assesses against Contractor from any unpaid amounts then or thereafter due Contractor under this Contract or any other agreement entered into by Owner and Contractor. Any Liquidated Damages not so deducted from any unpaid amounts due Contractor shall be payable by Contractor to Owner upon demand. Any Liquidated Damages not paid within thirty (30) days of Owner's demand shall accrue interest at the prime rate of interest, as described from time-to-time in the Money and Investing section of the Wall Street Journal plus four percent (4%) thereon until paid in full. 2.04 FINAL COMPLETION 2.04.01 Upon written notice from Contractor to Owner and Design Professional that the Work is complete, Owner will cause all required inspections to be performed by Design Professional, and any other approving authority(ies) having jurisdiction over any portion of the Project or the Work (collectively, "Approving Authority(ies)"). 2.04.02 If such inspections disclose any Work, in whole or in part, as being incomplete, defective or not in strict and absolute conformity with the Contract Documents ("Non-conforming Work"), Contractor will immediately correct such Non- conforming Work upon receipt of written notice thereof. Upon completion of such correction, the procedure in this Section 2.04 will be repeated until the Design Professional provides the certification described in Section 2.04.03 and any Approving Authority(ies) provide confirmation to Contractor of final inspection, approval and, if applicable, acceptance (including any required official action), separately or together. 2.04.03 Contractor shall be deemed to have accomplished final completion of the Work ("Final Completion") on the date that the last of all of the following shall have occurred: (a) Design Professional has submitted to Owner an executed certification that certifies that all Work has been completed in strict and absolute conformance with the Plans and Specifications and other Contract Documents; (b) Owner receives written confirmation of final inspection, approval and, if applicable, acceptance from any Approving Authority(ies) (including confirmation that any official action required has taken place as necessary to effectuate final approval and
6038-SL-23 Construction Contract ABCO Solar acceptance of the Work by such Approving Authority(ies)); and (c) Contractor has completed all punch list items to the reasonable satisfaction of Owner. ARTICLE 3 PAYMENT AND RELATED ITEMS 3.01 PAYMENT COMMUNICATION SUBMITTED TO OWNER'S REPRESENTATIVE All written communications from Contractor regarding payment shall be personally delivered to Owner's Project Representative who is designated as Owner's exclusive agent for purposes of such communications. No such communication shall be deemed received by Owner's Project Representative until it has been actually received by Owner's Project Representative. 3.02 PROGRESS PAYMENT APPLICATION; SCHEDULE OF VALUES; PROGRESS PAYMENT 3.02.01 On or before the fifth (5th) day of each month, Contractor shall submit to Owner a Progress Payment Application, which shall conform to a schedule of values, in form and substance approved by Owner (the "Schedule of Values"), and otherwise be consistent with the terms of this Contract. The Schedule of Values shall itemize each element of the Work and include a separate line item for Contractor's profit and overhead. Each Progress Payment Application shall request payment for only that portion of the Contract Price allocable to the Work performed during the preceding month. 3.02.02 Payment of each Progress Payment Application shall be subject to all of the following conditions: (a) Contractor shall submit with each Progress Payment Application written itemizations of the amount requested for Contractor and each Subcontractor through the cut off date of the Progress Payment Application for which payment is requested, with supporting invoices, billings, statutory lien waivers and releases in form and substance acceptable to Owner in Owner's sole and absolute discretion, and such other documentation reasonably requested by Owner to validate such amounts; (b) the Work for which payment is requested shall have progressed to Owner's reasonable satisfaction; and (c) Owner shall withhold any applicable retention as provided herein. 3.03 FINAL PAYMENT Upon Final Completion, Contractor may submit to Owner a Final Payment Application for final payment for the Work, including any retention withheld. Payment of the Final Payment Application shall be subject to all of the following conditions: (a) Contractor shall have complied with all other provisions of this Contract and not be in default hereunder; (b) Contractor shall submit with the Final Payment Application a written itemization of the final amount requested with respect to the Work, for Contractor and the Subcontractors, with supporting invoices, billings and other documentation reasonably requested by Owner to validate such amount; (c) Contractor shall provide Owner proper operating, training, and maintenance manuals, drawings, and any other documentation required by the Contract Documents; and (d) Contractor shall submit to Owner acceptable warranties for the Work and other closeout documentation, all of which shall be in strict and absolute accordance with the Contract Documents. 3.04 USE OF PAYMENTS All payments received by Contractor shall first be used to pay for all material, equipment and labor supplied by or to Contractor in connection with this Project and all such sums shall be held in trust for such suppliers entitled thereto and paid when due. 3.05 APPLICATION REVIEW Owner may decline to approve a Progress Payment Application or the Final Payment Application pursuant to a written notice submitted to Contractor specifying Owner's reasons for declining to approve such Application. 3.06 SET-OFF Owner may withhold, setoff or recoup from any payment due or thereafter to become due to Contractor under this Contract or any other agreement, an amount sufficient to cover any actual or potential claim or condition that may in Owner's reasonable opinion result in a Claim(s) (as defined in Section 7.01), for which Owner is entitled to reimbursement or indemnity under this Contract or that Owner may incur by reason of Contractor's breach of this Contract or of any legal duty owing to Owner or to any other party. No interest shall be paid to Contractor on any amounts so withheld, setoff or recouped. In the event amounts payable to Contractor are not sufficient to cover Contractor's obligations hereunder, Contractor shall pay any difference to Owner within ten (10) days of Owner's demand. 3.07 JOINT CHECKS Owner reserves the right to issue, and Contractor agrees to accept, joint checks and to execute, when requested by Owner, joint check agreements in form acceptable to Owner. Owner shall notify Contractor prior to initiating joint check arrangements. Contractor consents to Owner communicating directly with each of the Subcontractors to verify Contractor's payment history and account status.
6038-SL-23 Construction Contract ABCO Solar 3.08 PAYMENTS DO NOT CONSTITUTE ACCEPTANCE Payment hereunder shall not constitute evidence of Contractor's performance of its obligations hereunder, either wholly or in part, and no payment including final payment shall be construed to be an acceptance of Non-conforming Work. 3.09 TAXES, PERMITS AND FEES Contractor is solely responsible for paying all taxes applicable to the Work. All such taxes shall be included within the Contract Price, without markup or application of any profit, overhead or fee thereon. Contractor shall obtain and pay for, as part of the Contract Price, all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi-government entity having jurisdiction over the Project or the Work except for any such permits, approvals, licenses, charges or fees specifically identified in the Contract Documents as being the responsibility of the Owner. ARTICLE 4 CHANGES 4.01 CHANGE ORDER 4.01.01 A "Change Order" is a written amendment to this Contract signed by Owner and Contractor or their respective authorized Project Representative. The Contract Price and the Contract Time may be adjusted pursuant to a properly executed Change Order if Owner requests a change in the Work affecting the Contract Price or in the event circumstances or conditions arise that materially delay the overall progress of the Work, and the circumstances or conditions could not have been reasonably anticipated and are beyond Contractor's reasonable control (hereinafter, the occurrence of such a circumstance or condition is referred to jointly and severally as a "Change Order Event"). 4.01.02 Within five (5) business days after the occurrence of a Change Order Event, Contractor shall deliver written notice to Owner requesting a Change Order. Such notice shall (a) describe, with particularity, the Change Order Event and the probable effect the Change Order Event will have on the overall progress of the Work, and (b) include an estimate of any additional costs and expenses Contractor will incur as a result of the Change Order Event, as well as, such other written documentation as Owner may reasonably request to validate Contractor's Change Order request and to permit Owner to perform a cost or price analysis pursuant to 24 C.F.R. 85.36(f). 4.01.03 Provided Owner has received timely and proper notice, Owner shall determine, in Owner's reasonable discretion, whether a Change Order should be entered into on account of the Change Order Event. 4.01.04 If a Change Order Event results in a change in the Contract Price, the modified Contract Price must be negotiated based on the cost principles stated at 48 C.F.R. Subpart 31.2 and conform to the contract pricing provisions of 24 C.F.R. § 85.36(f). If a Change Order Event necessitates a modification of the original scope of this Contract, the Change Order is subject to 24 C.F.R. 84.43 and 24 C.F.R. 85.36(d) in addition to the requirements of this Contract. 4.01.05 If Owner determines a Change Order should be entered into, Owner and Contractor shall execute a Change Order, in the form attached hereto as Exhibit "D", which Change Order may, as applicable, adjust the Contract Time by the amount of time the overall progress of the Work has been delayed, and equitably adjust the Contract Price. Under no circumstance, however, shall the occurrence of the following circumstances or conditions be considered a Change Order Event: (a) discovery of any error made by Contractor in determining the sufficiency of the time provided in this Contract for accomplishing Substantial Completion or Final Completion; or (b) any delay caused by an alleged shortage of material, equipment or labor (for any reason). Upon execution of a Change Order, Contractor shall promptly proceed with the Work described thereunder. 4.01.06 Owner shall receive a credit against amounts owing on account of the Contract Price in the amount of any net decrease in the Contract Price resulting from all Change Orders entered into under this Contract (i.e., the amount by which all deductive Change Orders, if any, exceed all additive Change Orders, if any). 4.01.07 No person other than Owner's Project Representative shall have any authority to authorize or approve a Change Order on behalf of Owner. Contractor shall not commence any Work that may be subject to a Change Order as described in this Article 4, unless and until a Change Order is entered into. 4.02 MINOR CHANGES Owner may authorize minor changes in the Work that are consistent with the scope of Work and do not involve adjustments in the Contract Price or extension of the Contract Time by written order issued by Owner, which shall be binding on Contractor.
6038-SL-23 Construction Contract ABCO Solar ARTICLE 5 CONTRACTOR'S RESPONSIBILITIES 5.01 STANDARD OF CARE Contractor shall ensure that the Work is performed, whether by Contractor or Subcontractors (as defined in Article 8), with that degree of professional diligence and care ordinarily exercised by experienced and fully competent contractors having at least twenty (20) years of experience in properly and timely constructing first-class projects that are similarly situated in scope and complexity to the scope of Work provided for herein (the "Standard of Care"). The Standard of Care shall be deemed to apply to, govern, and be the basis from which such performance shall be evaluated by Owner or any party presiding over any dispute resolution proceeding. 5.02 COMPLIANCE WITH LAWS Contractor shall comply with the requirements of all laws, ordinances, codes, rules, regulations, executive orders, judicial opinions, and decisions of all governmental authorities having jurisdiction over the Project, the Site, the Work, or any part thereof, including, but not limited to, the Tohono O'odham Nation, federal (including, but not limited to, 24 C.F.R. Parts 85 and 1000), state, county and local authorities (collectively, the "Applicable Laws"). Applicable Laws include, but are not limited to, as applicable, those relating to taxes, employment, social security, unemployment, workers' compensation, wages, occupational health and safety, discrimination, disability, waters of the United States, land use, waste disposal, air, water, endangered species, groundwater, environmental contamination, toxic wastes, hazardous substances, oil, petrochemicals, pesticides, herbicides, building and construction codes and standards, and contractor licensing statutes and regulations. 5.03 LABOR, EQUIPMENT AND MATERIALS Contractor shall use sufficient laborers, equipment, and material so as not to delay the Project's progress. Contractor's laborers shall at all times perform the Work in harmony with those personnel employed or otherwise engaged by Owner or any other contractor performing design, construction and other activities with respect to the Project. 5.04 SITE SAFETY Contractor shall be solely responsible for the safety of the Work and all persons and property potentially impacted by the Work whether or not such safety is under the control of Contractor. Prior to commencing any of the Work, Contractor shall provide written notice to Owner, naming the person designated by Contractor to be Contractor's designated safety officer who shall be specifically responsible for overseeing the safety of the Work. 5.05 CLEANING UP Contractor shall, on a daily basis, keep the Site and surrounding areas free from accumulation of waste materials. Upon Final Completion, Contractor shall remove from and about the Site all waste materials, Contractor's tools, construction equipment, machinery and surplus materials. 5.06 QUALITY OF WORKMANSHIP AND MATERIALS Contractor shall perform frequent and ongoing inspections of the Work to ensure that the Work complies with the Contract Documents and Applicable Laws. If any dispute arises as to the quality of Contractor's workmanship or the quality or type of materials furnished, Owner's reasonable decision regarding such quality or type shall be binding on Contractor. 5.07 CERTIFICATIONS Prior to the commencement of any of the Work, Contractor shall provide Owner with any other form of certification required by Owner not otherwise described herein, certifying Contractor's compliance with any plan or permit governing the Work. ARTICLE 6 SUBCONTRACTORS 6.01 SUBCONTRACTS AND PURCHASE ORDERS Upon receipt of Owner's prior written approval, Contractor may contract with Subcontractors to perform portions of the Work, provided Contractor shall not be relieved from any liability or obligation hereunder. In connection therewith, each subcontract and purchase order shall: (a) be in writing; (b) specifically incorporate this Contract by reference in its entirety; (c) provide for a lump sum with respect to the compensation payable thereunder; (d) be accompanied by such proof of insurance as Owner shall require;
6038-SL-23 Construction Contract ABCO Solar (e) provide that Owner is an intended third party beneficiary of each Subcontractor's obligations under each subcontract or purchase order (without liability for benefits received) and an obligee of all express and implied warranties given by each Subcontractor under such subcontract, purchase order or Applicable Laws; (f) provide the Subcontractor's consent to be joined in any dispute resolution procedure or proceeding involving Owner and Contractor; (g) provide that Owner shall be entitled to enforce such subcontract or purchase order directly against the Subcontractor in the event Owner has been damaged by any breach thereof; (h) provide that any such subcontract or purchase order is contingently assigned to and assumable by Owner, at Owner's option; and (i) require, to the extent of the Work to be performed by the Subcontractor, that each Subcontractor be bound to the Contractor by the terms of the Contract Documents and assume toward the Contractor all the obligations and responsibilities that Contractor assumes toward Owner under this Contract, including the responsibility for the safety of the Subcontractor's Work. 6.02 ACTS AND OMISSIONS Contractor shall be responsible for the acts and omissions of all Subcontractors performing any Work under an agreement with Contractor in connection with the Project. ARTICLE 7 GOVERNING LAW, DISPUTE RESOLUTION, SOVEREIGN IMMUNITY, TERO AND FEDERAL REQUIREMENTS 7.01 GOVERNING LAW; ARBITRATION & DISPUTE RESOLUTION
7.01.01 GOVERNING LAW The Agreement shall be governed under the laws of the Tohono O'odham Nation in effect on and as written on the Effective Date, and in the absence thereof, the laws of the State of Arizona and applicable federal laws. Any action or proceeding brought by any party to the Agreement for the purpose of compelling arbitration or enforcing an arbitration award must be brought in Tribal Court. Owner also reserves the right to commence a suit, action or proceeding against Contractor in any court of competent jurisdiction, whether in state, federal or Tribal Court, to compel arbitration, enforce an arbitration award hereunder or for any purpose permitted under the Agreement. 7.01.02 ARBITRATION 7.01.02.01 Arbitration. The parties hereto agree, upon demand by any party, to submit to binding arbitration, all claims, disputes and controversies between or among them (and their respective employees, officers, directors, attorneys, and other agents), arising out of or relating to the Agreement and the negotiation, execution, administration, payment, modification, extension, substitution, formation, inducement, enforcement, default or termination thereof. Notice of intent to invoke arbitration shall be filed in compliance with the notice requirements set forth below. 7.01.02.02 Governing Rules. Any arbitration proceeding will (i) proceed in Tucson, Arizona, unless otherwise agreed to by the parties; (ii) be governed by the Federal Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting choice of law provision in any of the documents between the parties; and (iii) be conducted by the American Arbitration Association ("AAA"), or such other administrator as the parties shall mutually agree upon, in accordance with the AAA's commercial dispute resolution procedures, unless the claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and costs, in which case the arbitration shall be conducted in accordance with the AAA's optional procedures for large, complex commercial disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial disputes to be referred to herein, as applicable, as the "Rules"). If there is any inconsistency between the terms hereof and the Rules, the terms and procedures set forth herein shall govern and control. Any party who fails or refuses to submit to arbitration following a demand by any other party shall bear all costs and expenses incurred by such other party in compelling arbitration of any dispute. Any action to compel arbitration shall be brought in Tribal Court; provided, however, if Tribal Court lacks jurisdiction or is otherwise unavailable, any such action to compel arbitration may be brought by either party in the federal district court for the District of Arizona, or if such court lacks jurisdiction or is otherwise unavailable, the state courts of general jurisdiction for the State of Arizona.
6038-SL-23 Construction Contract ABCO Solar 7.01.02.03 Arbitrator Qualifications and Powers. Any arbitration proceeding in which the amount in controversy is $1,000,000.00 or less will be decided by a single arbitrator selected according to the Rules, and who shall not render an award of greater than $1,000,000.00. Any dispute in which the amount in controversy exceeds $1,000,000.00 shall be decided by majority vote of a panel of three arbitrators; provided however, that all three arbitrators must actively participate in all hearings and deliberations. Each arbitrator will be a neutral attorney licensed in the State of Arizona or under the laws of the Tohono O'odham Nation, or a neutral retired judge of the state or federal judiciary of Arizona, or of the Tohono O'odham Nation, in either case with a minimum of ten (10) years experience in the substantive law applicable to the subject matter of the dispute to be arbitrated, with at least one arbitrator having at least ten (10) years of experience in Indian Law. The arbitrator will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the arbitrator's discretion) any pre-hearing motions which are similar to motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all disputes in accordance with the substantive law of the Tohono O'odham Nation, or in the absence of such substantive laws, the laws of the State of Arizona or federal law, as such laws are applicable under the terms of the Agreement, and may grant any remedy or relief that a court of such jurisdiction could order or grant within the scope hereof and such ancillary relief as is necessary to make effective any award. The arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the Arizona Rules of Civil Procedure or other applicable rules, including those under the laws of the Tohono O'odham Nation. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief. 7.01.02.04 Discovery. In any arbitration proceeding, discovery will be permitted in accordance with the Rules. All discovery shall be expressly limited to matters directly relevant to the dispute being arbitrated and must be completed no later than twenty (20) days before the hearing date. Any requests for an extension of the discovery periods, or any discovery disputes, will be subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party's presentation and that no alternative means for obtaining information is available. 7.01.02.05 Payment of Arbitration Costs and Fees. The arbitrator shall award all costs and expenses of the arbitration proceeding. 7.01.02.06 Miscellaneous. To the maximum extent practicable, the arbitrators and the parties shall take all action required to conclude any arbitration proceeding within 180 days of the commencement thereof. No arbitrator or other party to an arbitration proceeding may disclose the existence, content or results thereof, except for disclosures of information by a party required in the ordinary course of its business or by applicable law or regulation. This arbitration provision shall survive termination, amendment or expiration of the Agreement and any of the documents executed in connection therewith. 7.01.02.07 Validity of Provision; Exhaustion of Remedies. Each party hereto agrees that this arbitration provision is valid, binding and enforceable, and to the extent permitted by law waives any defense or claim to the contrary. 7.01.02.08 Challenges Limited. By entering into and executing the Agreement, Contractor agrees that it shall not, in any dispute relating to the Agreement, contest or challenge the territorial, administrative, legislative, executive or judicial jurisdiction of the Tohono O'odham Nation on the basis that such jurisdiction is inconsistent with the status of the Tohono O'odham Nation as an Indian Tribal Nation, or that the Tohono O'odham Nation government is not a government of general jurisdiction, or that the Tohono O'odham Nation government does not possess full police power (i.e., the power to legislate and regulate for the public's general health and welfare) over all lands, persons, activities, transactions, or occurrences within its territorial boundaries, or on any other basis not generally applicable in the context of a similar challenge to the jurisdiction of a state government. 7.01.02.09 Arbitration as Bar to Suit. The arbitration provisions herein shall constitute the sole and exclusive procedural remedy to any dispute or controversy arising out of the Agreement. Commencement of arbitration shall be a complete defense to any suit, action or proceeding instituted in any federal, state, or tribal court or any administrative tribunal, with respect to any dispute or controversy arising out of the Agreement that is arbitrated as set forth herein.
6038-SL-23 Construction Contract ABCO Solar 7.01.02.10 Post-termination; Post-Expiration. The arbitration provisions of the Agreement shall, with respect to such any dispute or controversy arising out of the Agreement, survive the termination or expiration of the Agreement. 7.02 SOVEREIGN IMMUNITY Nothing contained in this Contract shall be interpreted as constituting a waiver, either expressed or implied, of the sovereign immunity of the Tohono O'odham Nation. 7.03 EMPLOYMENT RIGHTS Contractor shall comply with Title 13, Chapter 1 of the Tohono O'odham Code (i.e., "TERO"), including, but not limited to, Tohono O'odham Legislative Council Resolution No. 08-186 (Adopting a Wage Determination for Construction Projects within the boundaries of the Tohono O'odham Nation). Contractor shall meet with the Tohono O'odham Tribal Employment Rights Office to discuss Contractor's obligations under TERO before performing any Work described in this Contract. 7.04 ADDITIONAL PROVISIONS REQUIRED BY FEDERAL LAW Contractor, by the execution of this Contract, acknowledges that this Contract is subject to the following additional Applicable Laws, to which Contractor is hereby bound: 7.04.01 Contract Adjustments; Additional Services. Notwithstanding any other provision of this Contract, any settlement or equitable adjustment of amounts owing hereunder due to termination, suspension or delays by Owner and any modification or amendment of this Contract shall be negotiated based on the cost principles stated at 48 C.F.R. Subpart 31.2 and conform to the contract pricing provisions of 24 C.F.R. 85.36(f). Contractor shall provide supporting cost information in sufficient detail to permit Owner to perform the required cost or price analysis. 7.04.02 Clean Air and Clean Water. Pursuant to 24 C.F.R. 85.36(i)(12), Contractor shall comply with applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act (42 U.S.C. § 1857(h)), Section 508 of the Clean Water Act (33 U.S.C. § 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 C.F.R. Part 15). 7.04.03 Retention of Records. Contractor's accounting records shall be kept and maintained in accordance with generally accepted accounting principles consistently applied. Pursuant to 24 C.F.R. 85.36(i)(11), Contractor shall preserve, at Contractor's expense, all records relating to the Work performed, directly or indirectly, for a period of three (3) years after Owner, Contractor or, if applicable, other subgrantees under the contract between Owner and HUD make final payments and all other pending matters are closed. 7.04.04 Access and Inspection of Records. Pursuant to 24 C.F.R. 85.36(i)(10), access shall be given by Contractor to Owner, HUD, the Comptroller General of the United States, or any of their duly authorized representatives, to any books, documents, papers, and records of Contractor that are directly pertinent to the contract between Owner and HUD for the purpose of making an audit, examination, excerpts, and transcriptions. 7.04.05 Remedies. Pursuant to 24 C.F.R. 85.36(i)(1), this Contract contains administrative, contractual or legal remedies for instances in which Contractor violates or breaches this Contract, and provides for such sanctions and penalties as may be appropriate. 7.04.06 Contract Work Hours and Safety Standards. Pursuant to 24 C.F.R. 85.36(i)(6) and 24 C.F.R. 1000.16(c), Contractor and all Subcontractors of every tier shall comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-330), as supplemented by Department of Labor regulations (29 C.F.R. Part 5). 7.04.07 Equal Opportunity Employment. Pursuant to 24 C.F.R. 85.36(i)(3), Contractor and all Subcontractors of every tier shall comply with Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 C.F.R. Chapter 60). 7.04.08 Copeland Anti-Kickback Act. Pursuant to 24 C.F.R. 85.36(i)(4), Contractor and all Subcontractors of every tier shall comply with the Copeland "Anti-Kickback" Act (18 U.S.C. § 874), as supplemented in Department of Labor regulations (29 C.F.R. Part 3). 7.04.09 Debarred, suspended or ineligible contractors. Pursuant to 24 C.F.R. 1000.44, Contractor shall comply with 24 C.F.R. Part 24, Subpart C regarding the use of debarred, suspended or ineligible contractors. 7.05 PROHIBITION AGAINST LIENS Contractor hereby acknowledges that Contractor and its Subcontractors are prohibited from placing a lien on the Site. This prohibition shall be placed in all contracts Contractor enters into in connection with the Work performed under this Contract.
6038-SL-23 Construction Contract ABCO Solar 7.06 INDIAN PREFERENCE All Work performed under this Contract is subject to Section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. § 450e(b)) ("Section 7(b)"), which requires that to the greatest extent feasible, preference and opportunities for training and employment shall be given to Indians and preferences in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. (a) The parties to this Contract shall comply with the provisions of Section 7(b) and all HUD requirements adopted pursuant to Section 7(b) and agree that these Section 7(b) requirements shall be incorporated into every subcontract entered into by Contractor in connection with the Work performed. (b) Upon a finding by Owner, the Tohono O'odham Nation, or HUD that Contractor or any Subcontractor is not in compliance with Section 7(b), Contractor shall, at the direction of Owner, take appropriate remedial action pursuant to this Contract. 7.07 EMPLOYMENT OF LOW INCOME PERSONS 7.07.01 The Work to be performed under this Contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. § 1701u ("Section 3"). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (a) The parties to this Contract shall comply with HUD's regulations in 24 C.F.R. Part 135, which implement Section 3. Contractor hereby certifies that it is under no contractual obligation or other impediment that would prevent it from complying with 24 C.F.R. Part 135. (b) Contractor agrees to send to each labor organization or representative of workers a notice advising the labor organization or worker's representative of Contractor's commitments under this Section 3 clause. (c) Contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R. Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the Subcontractor is in violation of the regulations in 24 C.F.R. Part 135. Contractor will not subcontract with any Subcontractor if Contractor has notice or knowledge that the Subcontractor has been found in violation of the regulations in 24 C.F.R. Part 135. (d) Contractor hereby certifies that any vacant employment positions, including training positions, that are filled (1) after Contractor is selected but before the Contract is executed, and (2) with persons other than those whom the regulations of 24 C.F.R. Part 135 require employment opportunities to be directed, were not filled to circumvent Contractor's obligations under 24 C.F.R. Part 135. (e) Noncompliance with HUD's regulations in 24 C.F.R. Part 135 may result in sanctions, termination of this Contract for default, and debarment or suspension from future HUD assisted contracts. 7.07.02 Parties to this Contract that are subject to the provisions of Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with Section 7(b) compliance obligations. ARTICLE 8 OWNERSHIP AND USE OF DOCUMENTS All Contract Documents furnished to Contractor are for use solely with respect to the Project and shall not be used by Contractor or any subcontractor, material supplier or other lower tier provider of Work (collectively, "Subcontractors") on other projects or for additions to this Project without the prior written consent of Owner. Contractor and Subcontractors, if any, are granted a limited license to use and reproduce applicable portions of the Contract Documents appropriate to and for use in the execution of the Work. All right, title and interest in documentation prepared by Contractor in connection with the Work, including, but not limited to, any "as built" drawings, and all copyrights in such documentation, shall be submitted and assigned to Owner with the Final Payment Application as a condition of final payment, and shall become the property of Owner. ARTICLE 9 INDEMNIFICATION, INSURANCE AND RISK OF LOSS 9.01 INDEMNIFICATION OF OWNER To the fullest extent permitted by Applicable Laws, Contractor agrees to defend, indemnify and hold harmless Owner, any party providing funding for the Project or the Work, and their respective affiliated entities, parents, subsidiaries, partnerships, joint ventures, limited liability companies, members, trusts, and assigns, of every tier, and their respective directors, officers, partners,
6038-SL-23 Construction Contract ABCO Solar agents, employees, volunteers, members, managers, trustees, shareholders and any successors or assigns of any of the foregoing (individually, an "Indemnified Party", and collectively, the "Indemnified Parties") for, from and against any third party Claim arising out of or related to the performance of the Work, regardless of whether such Claim is sustained or asserted before or after the Completion Date or earlier termination of this Contract, and all attorneys' fees, consultants' fees, and all other expenses, whether or not taxable, incurred by any of the Indemnified Parties in the investigation, defense, settlement and satisfaction thereof. Contractor's obligation to defend, indemnify and hold harmless any of the Indemnified Parties extends to and includes every such Claim, just or unjust, whether based on a tort, strict liability, contract, lien, stop notice, Applicable Laws, active or passive negligence of any of the Indemnified Parties, or other theory of relief or liability, and whether the injury complained of arises from any death, personal injury, sickness, disease, property damage (including loss of use), trespass, economic loss, patent infringement, copyright infringement, hazardous substance release, oil discharge, waste disposal, taking of endangered species, or otherwise; provided, that Contractor shall not be obligated to indemnify an Indemnified Party for the Indemnified Party's sole negligence if such Claim is finally determined by a court of competent jurisdiction to be caused by the sole negligence of the Indemnified Party seeking indemnity hereunder. Contractor's indemnification obligation shall be without regard to any restriction on the compensation or benefits payable by or for Contractor or any Subcontractor under any Applicable Laws governing workers' compensation. 9.02 INSURANCE Contractor and Subcontractors of every tier shall purchase and maintain for the time periods provided in Exhibit "F", at Contractor's and such Subcontractors' sole cost and expense, insurance in the coverages, limits, and terms set forth on Exhibit "F". Failure to comply with this Section 9.02 and Exhibit "F" shall be a material breach of this Contract. 9.03 RISK OF LOSS Risk of loss shall be with Contractor until materials or equipment have been incorporated in the Site. ARTICLE 10 INSPECTION OF WORK AND NON-CONFORMING WORK 10.01 INSPECTION OF WORK AND REWORK The Work shall be subject to inspection and approval by the Owner, Design Professional and any Approving Authority(ies). Contractor shall cooperate with all required inspections of the Work and shall give Owner and Design Professional timely notice in advance (at least twenty-four (24) hours) of any inspections by Approving Authority(ies) so that Owner and Design Professional may observe such inspections. If any portion of the Work fails to pass inspection, Contractor shall bear all costs related to reinspection, detection, and correction of such Work (to the satisfaction of Owner, Design Professional and any Approving Authority(ies)) and any associated delay. Contractor shall commence any such correction within twenty-four (24) hours after any failed inspection and shall diligently pursue such correction until completion. If any portion of the Work is covered, or otherwise concealed prior to a required inspection, or contrary to the requirements of the Contract Documents, such Work shall be uncovered or revealed, and after inspection thereof, such Work shall be re-covered or re-concealed at Contractor's sole cost and expense, without extension of the Contract Time. Contractor shall not be relieved from any of its responsibilities hereunder by the activities or duties of the Owner, or by inspections required or performed by Subcontractors or persons or entities other than Contractor. 10.02 RIGHT TO PERFORM OR CORRECT WORK If Owner discovers Non-conforming Work prior to Substantial Completion, Owner may, without terminating this Contract, deliver notice to Contractor specifying the corrective Work Contractor must perform, together with a deadline for completing such Work. If Contractor fails to timely perform or complete such Work, Owner may cause the necessary corrective Work to be performed by others without prejudice to any other remedies Owner may have hereunder. Contractor shall cooperate to effect a smooth and timely transition for the performance of such corrective Work. Contractor shall reimburse Owner for all of Owner's losses and expenses resulting from Non-conforming Work, including, but not limited to, the Liquidated Damages, if the Work is delayed beyond the Substantial Completion Date. 10.03 DEFECTIVE WORK BY OTHERS If Contractor knows or should know that the Work will be applied to, or impacted by, defective construction performed by others, Contractor will notify Owner regarding such defective construction and await Owner's written authorization to proceed with such Work. If Contractor proceeds with such Work in breach of this Section 10.03, Contractor shall be responsible for all costs and expenses incurred by Owner in connection therewith.
6038-SL-23 Construction Contract ABCO Solar ARTICLE 11 PERFORMANCE AND CALL BACK WARRANTY 11.01 PERFORMANCE Contractor represents and warrants to Owner that: (a) Contractor will perform all of its obligations hereunder in strict and absolute accordance with the Standard of Care; and (b) all Work performed and materials and equipment supplied under this Contract will be: (i) in strict and absolute accordance with the Contract Documents; (ii) new and free from defects; (iii) of merchantable quality; and (iv) fit for Owner's intended use. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective by Owner. If required by Owner, Contractor shall promptly furnish satisfactory samples of materials demonstrating that the materials comply with this Section 11.01. Neither the express warranty of this Section 11.01 nor any other express warranty shall void implied warranties of habitability, merchantability, or fitness for a particular purpose or any other rights Owner has under the Contract Documents or Applicable Laws. 11.02 CALL BACK WARRANTY In addition to any other warranties or guaranties provided for herein or under any Applicable Laws, Contractor shall, within two (2) years after the Completion Date and at such times approved in advance by Owner, correct all Non-conforming Work to the satisfaction and approval of Owner, at Contractor's sole cost and expense. Contractor shall complete such correction within three (3) days of written notice from Owner, or in the case of an emergency, within four (4) hours of such notice. Contractor shall also correct any adjacent Work damaged or displaced in the process. If Contractor fails to correct any Non-conforming Work, Owner shall have the right to make such correction at Contractor's sole cost and expense, which cost and expense shall be payable by Contractor to Owner within ten (10) days of Owner's demand. Any correction of Non-conforming Work by Owner under this Section 11.02 shall not constitute a waiver by Owner of any other rights Owner has under the Contract Documents or Applicable Laws. ARTICLE 12 SUSPENSION AND TERMINATION 12.01 SUSPENSION Owner may issue a stop order ("Stop Order") requiring Contractor to stop Work immediately on that portion of the Work defined in the Stop Order. In such event, Contractor shall have no claim for additional compensation if Owner directs Contractor, in writing, to resume performance of such Work within one hundred twenty (120) days of the date of the Stop Order. If such resumption notice is not given by Owner within such time, Contractor may be entitled to an equitable adjustment of the Contract Time and Contract Price, as such adjustment is reasonably determined by Owner. 12.02 TERMINATION 12.02.01 Owner may terminate this Contract at any time, for cause, upon ten (10) days' prior written notice to Contractor if Contractor fails to perform any of its obligations hereunder (and such failure is not cured prior to the expiration of such ten (10) day period). Except that, Owner may terminate this Contract, for cause, without notice to Contractor if at any time Contractor fails to maintain all of the insurance required by this Contract or is, in any respect, in violation of any Applicable Laws, or if Contractor in any other way adversely jeopardizes the health, safety or welfare of persons or property, or if Contractor abandons the Work. In the event of either such termination, Owner may complete the Work through alternate means, and in connection therewith, take possession of Contractor's tools, equipment, machinery and materials and finish the Work in whatever manner Owner deems appropriate. Contractor shall reimburse Owner for all of Owner's reasonable costs and expenses incurred in connection with any such termination. 12.02.02 Owner may terminate this Contract at any time, without cause, for Owner's convenience upon forty-eight (48) hours prior written notice to Contractor. In the event of such termination for convenience, Owner will pay Contractor for the Work executed to the date of such termination. In no event shall Contractor be entitled to any fee, overhead, expense or profit on Work not performed. Owner shall not reimburse Contractor on account of alleged continuing contractual commitment claims with respect to Subcontractors or cancellation penalties or damages related thereto. 12.02.03 In the event of any termination by Owner for cause or convenience, Owner may require Contractor to promptly assign to Owner all or some of Contractor's agreements with Subcontractors and any other commitments that Owner in its sole discretion chooses to assume. Contractor shall promptly execute and deliver a written consent to assignment of any such agreements and commitments in form and substance acceptable to Owner.
6038-SL-23 Construction Contract ABCO Solar ARTICLE 13 MISCELLANEOUS PROVISIONS 13.01 RELATIONSHIP OF THE PARTIES The Contract Documents shall not be construed to create a contractual relationship of any kind between any person(s) or entity(ies) other than Owner and Contractor. 13.02 PROJECT REPRESENTATIVES All decisions made by a Project Representative, as described on Page 1, shall be binding on the respective represented party. Owner has the right, exercisable at any time, from time-to-time, to appoint a replacement Project Representative by providing notice thereof to Contractor. Contractor may terminate its Project Representative and appoint a replacement Project Representative only after obtaining Owner's written approval therefor. 13.03 INTENDED BENEFICIARY; OWNER RIGHT TO ASSUME Owner is an intended third party beneficiary of any subcontracts or purchase orders entered into between Contractor and Subcontractors, without liability for benefits received, and an obligee of all express and implied warranties given by any Subcontractor under such subcontracts or purchase orders or imposed by Applicable Laws. Owner shall be entitled to enforce such subcontracts or purchase orders directly against such Subcontractors in the event Owner has been damaged by any breach thereof. Any such subcontracts or purchase orders are contingently assigned to and assumable by Owner, at Owner's option. 13.04 COMPUTATION OF PERIODS All time periods referred to in this Contract shall include all Saturdays, Sundays and holidays, unless the period of time specifies business days. If the date to perform any act, excluding the date on which payment is due, or give a notice with respect to this Contract shall fall on a Saturday, Sunday or a holiday observed by the State of Arizona or the Tohono O'odham Nation, the act or notice may be timely performed on the next succeeding day that is not a Saturday, Sunday or a holiday observed by the State of Arizona or the Tohono O'odham Nation. 13.05 FURTHER ACTS Each party shall execute and deliver all documents and perform all other acts reasonably necessary, from time-to-time, to carry out the matters contemplated herein. 13.06 WAIVER The waiver or failure to enforce any provision of this Contract shall not operate as a waiver of any future breach of the provision or any other provision hereof. 13.07 COUNTERPARTS This Contract may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature pages from one or more counterparts of this Contract may be attached to a single instrument so that the signatures of all parties may be physically attached to a single document. 13.08 SEVERABILITY The provisions of this Contract are severable and if any provision is determined to be void or unenforceable under any dispute resolution proceeding, such provision shall not affect the validity of any of the other provisions of this Contract. 13.09 INTERPRETATION Each party has reviewed the Contract Documents to its satisfaction and agrees that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Contract or exhibits hereto. Unless otherwise stated in the Contract Documents, words that have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 13.10 NOTICES AND COMMUNICATIONS 13.10.01 Any and all notices, approvals, consents or other communications required or permitted hereunder shall be given in writing and shall be delivered by: facsimile (electronically confirmed by recipient); personal delivery; registered or certified mail, return receipt requested, postage prepaid; or Federal Express, Airborne, United Parcel Service or other similar nationally recognized overnight courier; and, in each case, addressed to the applicable Project Representative and, in all events, to Contractor and Owner at the addresses and/or facsimile numbers set forth on Page 1. Any party may designate in writing and deliver in a like manner any changes in address at least five (5) days before the change becomes effective.
6038-SL-23 Construction Contract ABCO Solar 13.10.02 Notices, approvals and other communications provided for herein shall be deemed received upon the earlier of (a) if by facsimile, electronic confirmation of receipt; (b) if by personal delivery or overnight courier, the date of delivery to the addressee; or (c) if by mail, three (3) days after the date of deposit in the U.S. Mail. Notwithstanding the foregoing, any notice received after 5:00 p.m. (local time in the location the notice is received) shall be deemed received on the immediately following business day. 13.11 RECOURSE LIMITED TO THE SITE If Owner defaults in the performance of any of Owner's obligations under this Contract and if, as a consequence of such default, Contractor recovers a money judgment against Owner, that judgment shall be satisfied only out of the right, title and interest of Owner in the Site as such right, title and interest may from time to time be encumbered. Contractor expressly agrees that under no circumstances shall any shareholder, director, officer, employee, agent, member or partner in or of Owner or Owner's Representative be personally liable for the performance of any of Owner's obligations hereunder. None of (a) Owner, (b) Owner's Representative, or (c) any other shareholder, director, officer, employee, agent, member or partner in or of Owner or Owner's Representative shall have any liability for performance of Owner's obligations under this Contract except to the extent expressly set forth above. 13.12 SUCCESSORS AND ASSIGNS Contractor shall not assign, convey or transfer any interest in any of this Contract without the prior written consent of Owner, which consent may be arbitrarily withheld, conditioned or delayed. If Owner consents to an assignment, Contractor's assignee shall assume in writing all obligations of Contractor hereunder, and Contractor shall continue to be liable for all such obligations. Owner shall have the right, without limitation, to assign this Contract, in whole or in part, to any party. This Section 13.12 notwithstanding, this Contract shall inure to the benefit of and be binding upon Owner, Contractor and their respective successors and assigns in the event of any permitted assignment. 13.13 SURVIVAL All indemnities, warranties, representations and other obligations of Contractor hereunder shall survive Owner's acceptance of the Work, completion of the Work or earlier termination of this Contract. 13.14 ENTIRE AGREEMENT This Contract constitutes the entire agreement between Owner and Contractor regarding the subject matter hereof and shall not be modified or amended except in a written document executed by Owner and Contractor. Any prior agreements or understandings between Owner and Contractor concerning the subject matter hereof are superseded and replaced by this Contract and are hereby rendered null and void. 13.15 EXHIBITS The attached exhibits are, by this reference, hereby incorporated herein and made a part hereof as if fully re-stated herein. 13.16 CAPTIONS Any captions to, or headings of, the paragraphs or subparagraphs of this Contract are solely for the convenience of the parties, are not a part of this Contract, and shall not be used for the interpretation or determination of the validity of this Contract or any provision hereof.
SEE EXHIBIT “G” FOR ADDITIONAL CONTRACTUAL REQUIREMENTS
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6038-SL-23 Construction Contract ABCO Solar EXHIBIT "A" LEGAL DESCRIPTION OF SITE
Project No. 6038-SL-23 San Xavier District/ Black Mountain Community
6038-SL-23 Construction Contract ABCO Solar EXHIBIT "B" SCOPE OF WORK
All of the following tasks shall be performed by Contractor for the Contract Price under the Contract and are included within the scope of Work:
Supply & Install 10 Solar Street Light Pole Assemblies in San Xavier Black Mountain Community
See Attached Contractor Scope of Work to be performed. See Attached Product Scope of Work to be provided
6038-SL-23 Construction Contract ABCO Solar Abco Solar, Inc. 2505 North Alvernon Way ROC-# 258378 Tucson, AZ 85712 (520) 777-0511
Quote # 005 CUSTOMER 5/12/2023 Date
Tohono O'odham Ki: Ki Association Ship To: Black Mountain Community Tohono O'odham Ki: Ki Association Black Mountain Community
Project: Black Mountain Community Solar Led Pole Lighting - Sub-division Roadways (DEFENDER SERIES LIGHTS) Contact Cody Chavez Phone 520-993-3113 Abco Sales Agent - Klaus Wyatt Email [email redacted] 520-338-0366 [email redacted]
Qty. Description - Install Single Head -LED Solar Poles & Lights - (Subdivision Roadways) Amount Ea. Total
( TURNKEY INSTALLATION ) Install new (GFS-DEFENDER )Single head , 15W Solar LED Lights with direct burial 20ft poles $3,945 $39,450
All Anchored in 4ftx deep 18in diameter concrete casson base, with rebar-( 2ft above ground.)
INCLUDES - LITHIUM ION BATTERIES
Includes All High lift equipment, Hole Auger,and Misc. Hardware, any additional Equipment, Fuel,
Completion Time Approx. 5 days
MFG. WARRANTY: (10 YEARS LITHIUM ION BATTERIES & LIGHTS ) (LABOR 3 YEARS )
(Payment Term schedule) Subtotal $39,450
Sales Tax $1,282
DOWN PAYMENT TO START $19,725.00 ( 50% of subtotal $70,350) Shipping $ 750.00
SALES TAX $1,282.00 ( = 5% )
SHIPPING $750.00
TOTAL DUE TO START $21,757.00 TOTAL $41,482
Accepted by Customer ______________________________________________ _____________________________ Signature Date MODEL GFS-DEFENDER-55 Power 55W (Max) Lumens 10,285lm CCT 4000K LED CREE X-PG / Adjustable angle -40° to +40° Lens LEDIL T3 type / IK-10 rated PIR Sensor Type TWIN (2x) Panasonic PIR Sensors (L+R Mount) PIR Boost Power Standard 19W (3,553lm) / Optional 6W (1,122lm) - On until 30 seconds post movement PIR Detection Range <15m / <49' detection zone
Solar Panel 32W mono-crystalline 21% efficiency (Additional 32W panel is available as an option) Solar Input Port (DC) Expansion port for optional additional solar panel DC Charging Port (IN) 15VDC, 3A max DC Power Port (OUT) 11-15VDC, 3A max (output voltage varies depending on battery SOC)
Battery Capacity 12.8v / 24Ah / 307.2Wh Battery Type LiFePo4 with passive cell balancing technology Autonomy Up to 102 hours / 8.5 nights (based on real world field test data) Charge Controller MPPT type with temperature and short circuit protection. Programmable custom settings. Operating Temp. -20oC to 60oC / -4oF to 140oF
Material 6063-T5 Aluminium Alloy (Black) Mounting Integrated pole mount ID - 64mm / 2-3/8” Tennon / Adjustable -90° to +90° Sail Area / EPA 0.33m² / 3.55ft²
Product Dimensions 711L x 386W x 244H mm / 27.99"L x 15.19"W x 2.63"H Product Weight 14.5 kg / 31.96 lb Package Dimensions 925 x 475 x 170 mm / 36.4"L x 18.70"W x 6.69"H Package Weight 19kg / 41.88 l
Warranty 5 year / 25 year solar panel / 10 year battery*
Pole (option) 6m / 20ft base hinge or direct bury; galvanised or galvanised with black powder coating Spigot adaptor (option) 76mm / 3” to 60mm / 2-3/8"
Operating Profile Combination of fixed level illumination and movement sensor activated boost lighting. Design based upon application and local solar conditions.
Options • Additional 32W solar panel - 645 x 340 x 30 mm / 25.39"L x 13.38" x 1.18" Includes Pole Mounting Bracket • Smart City Connection / Antenna Kit • IoT SMART city monitoring and control system (SAM) • T5 Lens • 3000K CCT • Turtle Friendly & Narrow Band Amber Wave 590nm, 645nm
*Full warranty details are available at: https://greenfrogsystems.com/product-warranty EXHIBIT "C" SCHEDULE
[TOKA to insert or attach the mutually agreed upon Project schedule.]
TBD
6038-SL-23 Construction Contract ABCO Solar EXHIBIT "D" FORM OF CHANGE ORDER
ATTACHED
6038-SL-23 Construction Contract ABCO Solar EXHIBIT "E" ON-SITE RULES
Project 606/
ON SITE ACTIVITY RULES
The following is an outline of the on-site activity rules:
Consumption of alcoholic beverages is not allowed on the project sites Parking of all vehicles shall be in a manner that does not obstruct the designated ingress and egress. No vehicles will be parking that will obstruct surrounding property sites Individuals are not allowed to bring firearms or discharge firearms while on the project site or within the boundaries of the Tohono O'odham Nation Individuals are not allowed to hurt, trap or disturb any animals while on the project site or within the boundaries of the Tohono O'odham Nation Individuals shall not disturb/damage or remove any tree, shrub or cactus while on the project site or within the boundaries of the Tohono O'odham Nation No individual shall remove or disturb historic artifacts, rocks, pottery shards or other items that may be culturally significant or historic in significance No littering is allowed. Dispose of all trash in the proper containers and clean up the project sites on a daily basis. No open campfires are allowed while on the project site or within the boundaries of the Tohono O'odham Nation No vehicle is allowed to travel off designated roadways Any fluid leaks or spills of petroleum products or other hazardous/toxic material shall be reported to the Tohono O'odham Ki:Ki Association Community members or elected officials may be observing the construction activities. Please be respectful at all times while on the project site. All individuals, contractors and/sub- contractors are subject to the laws, rules and ordinances of the Tohono O'odham Nation and Unites States government
Failure to abide/adhere to the above rules may be punishable in accordance with local Tribal and Federal Laws and subject to prosecution in Tribal and/or federal court The site projects are located within one of the Nation's 11 separate districts. Other rules, laws and regulations may be administered and apply in the local area's jurisdiction
606/ Construction Contract EXHIBIT "F" INSURANCE REQUIREMENTS
1.01 CONTRACTOR'S INSURANCE REQUIREMENTS
1.01.01 Contractor and the Subcontractors of every tier shall purchase and maintain for the time periods provided herein, at Contractor's and such Subcontractors' sole cost and expense, insurance in the coverages, limits, and terms set forth as follows:
1.01.01.1 Workmen's Compensation coverage in full compliance with the Workmen's Compensation and Occupational Diseases Laws of Arizona;
1.01.01.2 Employer's Liability coverage in the amount of not less than $500,000 per person;
1.01.01.3 Commercial General Liability coverage of at least $1,000,000 per occurrence, combined single limit for bodily injury and property damage, which policy shall provide coverage for special hazards, when such hazards are incidental to the Work, and shall include the hazards of blasting, explosion, excavation, collapse of structures, damage to underground facilities and structures, completed operations for a period of two (2) years and blanket contractual liability coverage;
1.01.01.4 Comprehensive Automobile Liability coverage including coverage for owned, non-owned and hired vehicles of at least $1,000,000 per occurrence, combined single limit liability for bodily injury and property damage; and
1.01.01.5 Overall Umbrella Insurance in the amount of $2,000,000 per occurrence.
1.01.02 Insurance shall be provided by or on behalf of Subcontractors, of every tier, to cover any part of the Work performed under a subcontract and shall be maintained until Final Completion. Such insurance shall also be in the coverages, limits, and terms set forth in this Exhibit "F" unless otherwise specified by Owner, in writing.
1.01.03 Certificates of Insurance evidencing the required coverages described in this Exhibit "F" shall be submitted to Owner prior to the commencement of Work. Original policies and all required updates shall be sent to the Owner's Representative.
1.01.04 Failure to comply with this Exhibit "F" shall be a material breach of the Contract.
1.01.05 All insurance under this Exhibit "F" shall:
1.01.05.1 contain appropriate endorsements naming Owner and the Indemnified Parties as additional insureds;
1.01.05.2 state that Owner will be provided at least sixty (60) days advance written notice of a lapse, cancellation or modification of the insurance;
1.01.05.3 be primary coverage without right of contribution from any other Owner insurance; and
1.01.05.4 be provided by an insurance company authorized to issue insurance in Arizona from a carrier having an A.M. Best Company Rating of at least A--VII.
1.01.06 The furnishing of the required Certificates of Insurance by Contractor shall in no way reduce Contractor's liabilities or obligations under the Contract.
1.01.07 Contractor shall not violate, or permit to be violated, any conditions of any required insurance policies, and shall at all times satisfy the requirements of the insurance companies issuing such policies.
1.01.08 If Contractor or any Subcontractor fails to furnish and maintain the insurance in the coverages, limits and terms set forth herein, Owner shall have the right (but not the obligation) to procure and maintain such insurance for all parties on behalf of Contractor, at Contractor's sole cost and expense, and Contractor agrees to furnish all necessary information required to effect such procurement. -i- 6038-SL-23 Construction Contract ABCO Solar 1.02 OWNER'S INSURANCE
Owner shall pay for and maintain Owner's customary liability insurance. Owner may provide a "Builder Risk" policy in Owner's sole and absolute discretion. Insurance maintained by Owner is for the exclusive benefit of Owner and will not inure to the benefit of Contractor.
1.03 WAIVER OF SUBROGATION
Owner and Contractor each waives as against the other and against each other named insured, its right to recover from the other for loss or damage (notwithstanding that such loss or damage may result in whole or in part from negligence) to the extent such loss or damage is covered by insurance, except such rights as it has to proceeds of such insurance. Contractor shall require of its consultants and separate contractors, by appropriate agreements, written where legally required for validity, similar waivers each in favor of Owner. All policies shall provide such waivers of subrogation by appropriate endorsement. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
6038-SL-23 Construction Contract ABCO Solar EXHIBIT “G”
Other Regulatory Documents & Requirements incorporated into this contract for Contractor Compliance.
1. HUD 5369-A Form (Need Executed) 2. HUD 5370 Form 3. Non - Collusive Affidavit (Need Executed) 4. Contractor shall utilize current Davis Bacon Wage Determinations for the Scope of Work (SOW) wages. 5. Contractor shall comply with Tohono O’odham Nation requirements pertaining to: T.O. Privilege License & Taxes and Tribal Employment Rights Office (TERO) fees
6038-SL-23 Construction Contract ABCO Solar U.S. Department of Housing and Urban Development Office of Public and Indian Housing
Representations, Certifications, and Other Statements of Bidders Public and Indian Housing Programs
Tohono O’odham Ki:Ki Association
Project: 606/
Previous edition is obsolete form HUD-5369-A (11/92) General Conditions for Construction U.S. Department of Housing and Urban Development Contracts - Public Housing Programs Office of Public and Indian Housing OMB Approval No. 2577-0157 (exp. 01/31/2014)
Applicability. This form is applicable to any construction/development contract greater than $100,000.
This form includes those clauses required by OMB's common rule on grantee procurement, implemented at HUD in 24 CFR 85.36, and those requirements set forth in Section 3 of the Housing and Urban Development Act of 1968 and its amendment by the Housing and Community Development Act of 1992, implemented by HUD at 24 CFR Part 135. The form is required for construction contracts awarded by Public Housing Agencies (PHAs). The form is used by Housing Authorities in solicitations to provide necessary contract clauses. If the form were not used, HAs would be unable to enforce their contracts. Public reporting burden for this collection of information is estimated to average 1.0 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Responses to the collection of information are required to obtain a benefit or to retain a benefit. The information requested does not lend itself to confidentiality. HUD may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB number.
Table of Contents Clause Page Clause Page
1. Definitions 2 Administrative Requirements 2. Contractor’s Respons bility for Work 2 25. Contract Period 9 3. Architect’s Duties, Responsibilities and Authority 2 26. Order of Precedence 9 4. Other Contracts 3 27. Payments 9 Construction Requirements 28. Contract Modifications 10 5. Preconstruction Conference and Notice to Proceed 3 29. Changes 10 6. Construction Progress Schedule 3 30. Suspension of Work 11 7. Site Investigation and Conditions Affecting the Work 3 31. Disputes 11 8. Differing Site Conditions 4 32. Default 11 9. Specifications and Drawings for Construction 4 33. Liquidated Damages 12 10. As-Built Drawings 5 34. Termination of Convenience 12 11. Material and Workmanship 5 35. Assignment of Contract 12 12. Permits and Codes 5 36. Insurance 12 13. Health, Safety, and Accident Prevention 6 37. Subcontracts 13 14. Temporary Buildings and Transportation Materials 6 38. Subcontracting with Small and Minority Firms, Women’s 13 Business Enterprise, and Labor Surplus Area Firms 15. Availability and Use of Utility Services 6 39. Equal Employment Opportunity 13 16. Protection of Existing Vegetation, Structures, Equipment, 40. Employment, Training, and Contracting Opportunities for 14 Utilities, and Improvements 6 Low-Income Persons, Section 3 of the Housing and Urban Development Act of 1968 17. Temporary Buildings and Transportation Materials 7 41. Interest of Members of Congress 15 18. Clean Air and Water 7 42. Interest of Members, Officers, or Employees and Former 15 Members, Officers, or Employees 19. Energy Efficiency 7 43. Limitations on Payments Made to Influence 15 20. Inspection and Acceptance of Construction 7 44. Royalties and Patents 15 21. Use and Possession Prior to Completion 8 45. Examination and Retention of Contractor’s Records 15 22. Warranty of Title 8 46. Labor Standards-Davis-Bacon and Related Acts 15 23. Warranty of Construction 8 47. Non-Federal Prevailing Wage Rates 19 24. Proh bition Against Liens 9 48. Procurement of Recovered Materials 19
Previous editions are obsolete Page 1 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G 1. Definitions (a) The Contractor shall furnish all necessary labor, materials, tools, equipment, and transportation necessary (a) “Architect” means the person or other entity engaged by for performance of the work. The Contractor shall also the PHA to perform architectural, engineering, design, furnish all necessary water, heat, light, and power not and other services related to the work as provided for in made available to the Contractor by the PHA pursuant to the contract. When a PHA uses an engineer to act in this the clause entitled Availability and Use of Utility Services capacity, the terms “architect” and “engineer” shall be herein. synonymous. The Architect shall serve as a technical (b) The Contractor shall perform on the site, and with its own representative of the Contracting Officer. The Architect’s organization, work equivalent to at least [ ] (12 percent authority is as set forth elsewhere in this contract. unless otherwise indicated) of the total amount of work to (b) “Contract” means the contract entered into between the be performed under the order. This percentage may be PHA and the Contractor. It includes the forms of Bid, the reduced by a supplemental agreement to this order if, Bid Bond, the Performance and Payment Bond or Bonds during performing the work, the Contractor requests a or other assurance of completion, the Certifications, reduction and the Contracting Officer determines that the Representations, and Other Statements of Bidders (form reduction would be to the advantage of the PHA. HUD-5370), these General Conditions of the Contract for (c) At all times during performance of this contract and until Construction (form HUD-5370), the applicable wage rate the work is completed and accepted, the Contractor shall determinations from the U.S. Department of Labor, any directly superintend the work or assign and have on the special conditions included elsewhere in the contract, the work site a competent superintendent who is satisfactory specifications, and drawings. It includes all formal to the Contracting Officer and has authority to act for the changes to any of those documents by addendum, Contractor. change order, or other modification. (d) The Contractor shall be responsible for all damages to (c) “Contracting Officer” means the person delegated the au- persons or property that occur as a result of the thority by the PHA to enter into, administer, and/or Contractor’s fault or negligence, and shall take proper terminate this contract and designated as such in writing safety and health precautions to protect the work, the to the Contractor. The term includes any successor workers, the public, and the property of others. The Contracting Officer and any duly authorized Contractor shall hold and save the PHA, its officers and representative of the Contracting Officer also designated agents, free and harmless from liability of any nature in writing. The Contracting Officer shall be deemed the occasioned by the Contractor’s performance. The authorized agent of the PHA in all dealings with the Contractor shall also be responsible for all materials Contractor. delivered and work performed until completion and (d) “Contractor” means the person or other entity entering acceptance of the entire work, except for any completed into the contract with the PHA to perform all of the work unit of work which may have been accepted under the required under the contract. contract. (e) “Drawings” means the drawings enumerated in the (e) The Contractor shall lay out the work from base lines and schedule of drawings contained in the Specifications and bench marks indicated on the drawings and be as described in the contract clause entitled Specifications responsible for all lines, levels, and measurements of all and Drawings for Construction herein. work executed under the contract. The Contractor shall (f) “HUD” means the United States of America acting verify the figures before laying out the work and will be through the Department of Housing and Urban held responsible for any error resulting from its failure to Development including the Secretary, or any other do so. person designated to act on its behalf. HUD has agreed, (f) The Contractor shall confine all operations subject to the provisions of an Annual Contributions (including storage of materials) on PHA premises to Contract (ACC), to provide financial assistance to the PHA, areas authorized or approved by the Contracting which includes assistance in financing the work to be Officer. performed under this contract. As defined elsewhere in (g) The Contractor shall at all times keep the work area, these General Conditions or the contract documents, the including storage areas, free from accumulations of determination of HUD may be required to authorize waste materials. After completing the work and before changes in the work or for release of funds to the PHA for final inspection, the Contractor shall (1) remove from the payment to the Contractor. Notwithstanding HUD’s role, premises all scaffolding, equipment, tools, and materials nothing in this contract shall be construed to create any (including rejected materials) that are not the property of contractual relationship between the Contractor and HUD. the PHA and all rubbish caused by its work; (2) leave the (g) “Project” means the entire project, whether construction work area in a clean, neat, and orderly condition or rehabilitation, the work for which is provided for in satisfactory to the Contracting Officer; (3) perform all whole or in part under this contract. specified tests; and, (4) deliver the installation in (h) “PHA” means the Public Housing Agency organized complete and operating condition. under applicable state laws which is a party to this (h) The Contractor’s responsibility will terminate when all contract. work has been completed, the final inspection made, and (j) “Specifications” means the written description of the the work accepted by the Contracting Officer. The technical requirements for construction and includes the Contractor will then be released from further obligation criteria and tests for determining whether the except as required by the warranties specified elsewhere requirements are met. in the contract. (l) “Work” means materials, workmanship, and manufacture and fabrication of components. 3. Architect’s Duties, Responsibilities, and Authority
2. Contractor’s Responsibility for Work (a) The Architect for this contract, and any successor, shall be designated in writing by the Contracting Officer. Previous editions are obsolete Page 2 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G (b) The Architect shall serve as the Contracting Officer’s 6. Construction Progress Schedule technical representative with respect to architectural, engineering, and design matters related to the work (a) The Contractor shall, within five days after the performed under the contract. The Architect may provide work commences on the contract or another period of direction on contract performance. Such direction shall be time determined by the Contracting Officer, prepare within the scope of the contract and may not be of a and submit to the Contracting Officer for approval nature which: (1) institutes additional work outside the three copies of a practicable schedule showing the scope of the contract; (2) constitutes a change as defined order in which the Contractor proposes to perform the in the Changes clause herein; (3) causes an increase or work, and the dates on which the Contractor decrease in the cost of the contract; (4) alters the contemplates starting and completing the several salient Construction Progress Schedule; or (5) changes any of features of the work (including acquiring labor, materials, the other express terms or conditions of the contract. and equipment). The schedule shall be in the form of a (c) The Architect’s duties and responsibilities may include but progress chart of suitable scale to indicate appropriately shall not be limited to: the percentage of work scheduled for completion by any (1) Making periodic visits to the work site, and on the given date during the period. If the Contractor fails to basis of his/her on-site inspections, issuing written submit a schedule within the time prescribed, the reports to the PHA which shall include all observed Contracting Officer may withhold approval of progress deficiencies. The Architect shall file a copy of the payments or take other remedies under the contract until report with the Contractor’s designated representative the Contractor submits the required schedule. at the site; (b) The Contractor shall enter the actual progress on (2) Making modifications in drawings and technical the chart as required by the Contracting Officer, and specifications and assisting the Contracting Officer in immediately deliver three copies of the annotated the preparation of change orders and other contract schedule to the Contracting Officer. If the Contracting modifications for issuance by the Contracting Officer; Officer determines, upon the basis of inspection (3) Reviewing and making recommendations with respect conducted pursuant to the clause entitled Inspection and to - (i) the Contractor’s construction progress Acceptance of Construction, herein that the Contractor is schedules; (ii) the Contractor’s shop and detailed not meeting the approved schedule, the Contractor shall drawings; (iii) the machinery, mechanical and other take steps necessary to improve its progress, including equipment and materials or other articles proposed those that may be required by the Contracting Officer, for use by the Contractor; and, (iv) the Contractor’s without additional cost to the PHA. In this circumstance, price breakdown and progress payment estimates; the Contracting Officer may require the Contractor to and, increase the number of shifts, overtime operations, days (4) Assisting in inspections, signing Certificates of of work, and/or the amount of construction plant, and to Completion, and making recommendations with submit for approval any supplementary schedule or respect to acceptance of work completed under the schedules in chart form as the Contracting Officer deems contract. necessary to demonstrate how the approved rate of progress will be regained. 4. Other Contracts (c) Failure of the Contractor to comply with the requirements of the Contracting Officer under this clause shall be The PHA may undertake or award other contracts for grounds for a determination by the Contracting Officer additional work at or near the site of the work under this that the Contractor is not prosecuting the work with contract. The Contractor shall fully cooperate with the sufficient diligence to ensure completion within the time other contractors and with PHA employees and shall specified in the Contract. Upon making this carefully adapt scheduling and performing the work under determination, the Contracting Officer may terminate the this contract to accommodate the additional work, heeding Contractor’s right to proceed with the work, or any any direction that may be provided by the Contracting separable part of it, in accordance with the Default clause Officer. The Contractor shall not commit or permit any act of this contract. that will interfere with the performance of work by any other contractor or by PHA employees 7. Site Investigation and Conditions Affecting the Work Construction Requirements (a) The Contractor acknowledges that it has taken steps reasonably necessary to ascertain the nature and 5. Pre-construction Conference and Notice to location of the work, and that it has investigated and Proceed satisfied itself as to the general and local conditions (a) Within ten calendar days of contract execution, and prior which can affect the work or its cost, including but not to the commencement of work, the Contractor shall limited to, (1) conditions bearing upon transportation, attend a preconstruction conference with representatives disposal, handling, and storage of materials; (2) the of the PHA, its Architect, and other interested parties availability of labor, water, electric power, and roads;(3) convened by the PHA. The conference will serve to uncertainties of weather, river stages, tides, or similar acquaint the participants with the general plan of the physical conditions at the site; (4) the conformation and construction operation and all other requirements of the conditions of the ground; and (5) the character of contract. The PHA will provide the Contractor with the equipment and facilities needed preliminary to and during date, time, and place of the conference. work performance. The Contractor also acknowledges (b) The contractor shall begin work upon receipt of a written that it has satisfied itself as to the character, quality, and Notice to Proceed from the Contracting Officer or quantity of surface and subsurface materials or obstacles designee. The Contractor shall not begin work prior to to be encountered insofar as this information is receiving such notice.
Previous editions are obsolete Page 3 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G reasonably ascertainable from an inspection of the site, promptly submitted to the Contracting Officer, who shall including all exploratory work done by the PHA, as well promptly make a determination in writing. Any adjustment as from the drawings and specifications made a part of by the Contractor without such a determination shall be at this contract. Any failure of the Contractor to take the its own risk and expense. The Contracting Officer shall actions described and acknowledged in this paragraph furnish from time to time such detailed drawings and will not relieve the Contractor from responsibility for other information as considered necessary, unless estimating properly the difficulty and cost of successfully otherwise provided. performing the work, or for proceeding to successfully (b) Wherever in the specifications or upon the drawings the perform the work without additional expense to the PHA. words 'directed”, 'required”, 'ordered”, 'designated”, (b) The PHA assumes no responsibility for any conclusions 'prescribed”, or words of like import are used, it shall be or interpretations made by the Contractor based on the understood that the 'direction”, 'requirement”, 'order”, information made available by the PHA. Nor does the 'designation”, or 'prescription”, of the Contracting Officer PHA assume responsibility for any understanding is intended and similarly the words 'approved”, reached or representation made concerning conditions 'acceptable”, 'satisfactory”, or words of like import shall which can affect the work by any of its officers or agents mean 'approved by”, or 'acceptable to”, or 'satisfactory before the execution of this contract, unless that to” the Contracting Officer, unless otherwise expressly understanding or representation is expressly stated in stated. this contract. (c) Where 'as shown”, 'as indicated”, 'as detailed”, or words of similar import are used, it shall be understood that the 8. Differing Site Conditions reference is made to the drawings accompanying this contract unless stated otherwise. The word 'provided” as (a) The Contractor shall promptly, and before the conditions used herein shall be understood to mean 'provide are disturbed, give a written notice to the Contracting complete in place” that is 'furnished and installed”. Officer of (1) subsurface or latent physical conditions at (d) 'Shop drawings” means drawings, submitted to the PHA the site which differ materially from those indicated in this by the Contractor, subcontractor, or any lower tier contract, or (2) unknown physical conditions at the site(s), subcontractor, showing in detail (1) the proposed of an unusual nature, which differ materially from those fabrication and assembly of structural elements and (2) ordinarily encountered and generally recognized as the installation (i.e., form, fit, and attachment details) of inhering in work of the character provided for in the materials of equipment. It includes drawings, diagrams, contract. layouts, schematics, descriptive literature, illustrations, (b) The Contracting Officer shall investigate the site schedules, performance and test data, and similar conditions promptly after receiving the notice. Work shall materials furnished by the Contractor to explain in detail not proceed at the affected site, except at the specific portions of the work required by the contract. The Contractor’s risk, until the Contracting Officer has PHA may duplicate, use, and disclose in any manner and provided written instructions to the Contractor. If the for any purpose shop drawings delivered under this conditions do materially so differ and cause an increase contract. or decrease in the Contractor’s cost of, or the time (e) If this contract requires shop drawings, the Contractor required for, performing any part of the work under this shall coordinate all such drawings, and review them for contract, whether or not changed as a result of the accuracy, completeness, and compliance with other conditions, the Contractor shall file a claim in writing to contract requirements and shall indicate its approval the PHA within ten days after receipt of such instructions thereon as evidence of such coordination and review. and, in any event, before proceeding with the work. An Shop drawings submitted to the Contracting Officer equitable adjustment in the contract price, the delivery without evidence of the Contractor’s approval may be schedule, or both shall be made under this clause and returned for resubmission. The Contracting Officer will the contract modified in writing accordingly. indicate an approval or disapproval of the shop drawings (c) No request by the Contractor for an equitable adjustment and if not approved as submitted shall indicate the PHA’s to the contract under this clause shall be allowed, unless reasons therefore. Any work done before such approval the Contractor has given the written notice required; shall be at the Contractor’s risk. Approval by the provided, that the time prescribed in (a) above for giving Contracting Officer shall not relieve the Contractor from written notice may be extended by the Contracting responsibility for any errors or omissions in such Officer. drawings, nor from responsibility for complying with the (d) No request by the Contractor for an equitable adjustment requirements of this contract, except with respect to to the contract for differing site conditions shall be variations described and approved in accordance with (f) allowed if made after final payment under this contract. below. (f) If shop drawings show variations from the contract 9. Specifications and Drawings for Construction requirements, the Contractor shall describe such variations in writing, separate from the drawings, at the (a) The Contractor shall keep on the work site a copy of the time of submission. If the Architect approves any such drawings and specifications and shall at all times give the variation and the Contracting Officer concurs, the Contracting Officer access thereto. Anything mentioned Contracting Officer shall issue an appropriate in the specifications and not shown on the drawings, or modification to the contract, except that, if the variation is shown on the drawings and not mentioned in the minor or does not involve a change in price or in time of specifications, shall be of like effect as if shown or performance, a modification need not be issued. mentioned in both. In case of difference between (g) It shall be the responsibility of the Contractor to make drawings and specifications, the specifications shall timely requests of the PHA for such large scale and full govern. In case of discrepancy in the figures, in the size drawings, color schemes, and other additional drawings, or in the specifications, the matter shall be information, not already in his possession, which shall be required in the planning and production of the work. Such requests may be submitted as the need arises, but each Previous editions are obsolete Page 4 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G such request shall be filed in ample time to permit When required by this contract or by the Contracting appropriate action to be taken by all parties involved so Officer, the Contractor shall also obtain the as to avoid delay. Contracting Officer’s approval of the material or (h) The Contractor shall submit to the Contracting Officer articles which the Contractor contemplates for approval four copies (unless otherwise indicated) of incorporating into the work. When requesting all shop drawings as called for under the various approval, the Contractor shall provide full information headings of these specifications. Three sets (unless concerning the material or articles. Machinery, otherwise indicated) of all shop drawings, will be equipment, material, and articles that do not have the retained by the PHA and one set will be returned to the required approval shall be installed or used at the risk Contractor. As required by the Contracting Officer, the of subsequent rejection. Contractor, upon completing the work under this contract, (2) When required by the specifications or the shall furnish a complete set of all shop drawings as Contracting Officer, the Contractor shall submit finally approved. These drawings shall show all changes appropriately marked samples (and certificates and revisions made up to the time the work is completed related to them) for approval at the Contractor’s and accepted. expense, with all shipping charges prepaid. The (i)This clause shall be included in all subcontracts at any Contractor shall label, or otherwise properly mark on tier. It shall be the responsibility of the Contractor to the container, the material or product represented, its ensure that all shop drawings prepared by subcontractors place of origin, the name of the producer, the are submitted to the Contracting Officer. Contractor’s name, and the identification of the construction project for which the material or product 10. As-Built Drawings is intended to be used. (3) Certificates shall be submitted in triplicate, describing (a) 'As-built drawings,” as used in this clause, each sample submitted for approval and certifying means drawings submitted by the Contractor or that the material, equipment or accessory complies subcontractor at any tier to show the construction of a with contract requirements. The certificates shall particular structure or work as actually completed under include the name and brand of the product, name of the contract. 'As-built drawings” shall be synonymous manufacturer, and the location where produced. with 'Record drawings.” (4) Approval of a sample shall not constitute a waiver of (b) As required by the Contracting Officer, the the PHA right to demand full compliance with contract Contractor shall provide the Contracting Officer accurate requirements. Materials, equipment and accessories information to be used in the preparation of permanent may be rejected for cause even though samples have as-built drawings. For this purpose, the Contractor shall been approved. record on one set of contract drawings all changes from (5) Wherever materials are required to comply with the installations originally indicated, and record final recognized standards or specifications, such locations of underground lines by depth from finish grade specifications shall be accepted as establishing the and by accurate horizontal offset distances to permanent technical qualities and testing methods, but shall not surface improvements such as buildings, curbs, or govern the number of tests required to be made nor edges of walks. modify other contract requirements. The Contracting (c) This clause shall be included in all subcontracts at any Officer may require laboratory test reports on items tier. It shall be the responsibility of the Contractor to submitted for approval or may approve materials on ensure that all as-built drawings prepared by the basis of data submitted in certificates with subcontractors are submitted to the Contracting Officer. samples. Check tests will be made on materials delivered for use only as frequently as the Contracting 11. Material and Workmanship Officer determines necessary to insure compliance of materials with the specifications. The Contractor will (a) All equipment, material, and articles furnished under this assume all costs of retesting materials which fail to contract shall be new and of the most suitable grade for meet contract requirements and/or testing materials the purpose intended, unless otherwise specifically offered in substitution for those found deficient. provided in this contract. References in the contract to (6) After approval, samples will be kept in the Project equipment, material, articles, or patented processes by office until completion of work. They may be built into trade name, make, or catalog number, shall be regarded the work after a substantial quantity of the materials as establishing a standard of quality and shall not be they represent has been built in and accepted. construed as limiting competition. The Contractor may, at (c) Requirements concerning lead-based paint. The its option, use any equipment, material, article, or Contractor shall comply with the requirements concerning process that, in the judgment of, and as approved by the lead-based paint contained in the Lead-Based Paint Contracting Officer, is equal to that named in the Poisoning Prevention Act (42 U.S.C. 4821-4846) as specifications, unless otherwise specifically provided in implemented by 24 CFR Part 35. this contract. (b) Approval of equipment and materials. 12. Permits and Codes (1) The Contractor shall obtain the Contracting Officer’s approval of the machinery and mechanical and other (a) The Contractor shall give all notices and comply with all equipment to be incorporated into the work. When applicable laws, ordinances, codes, rules and requesting approval, the Contractor shall furnish to regulations. Notwithstanding the requirement of the the Contracting Officer the name of the manufacturer, Contractor to comply with the drawings and specifications the model number, and other information concerning in the contract, all work installed shall comply with all the performance, capacity, nature, and rating of the applicable codes and regulations as amended by any machinery and mechanical and other equipment. waivers. Before installing the work, the Contractor shall examine the drawings and the specifications for Previous editions are obsolete Page 5 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G compliance with applicable codes and regulations 14. Temporary Heating bearing on the work and shall immediately report any discrepancy it may discover to the Contracting Officer. The Contractor shall provide and pay for temporary Where the requirements of the drawings and heating, covering, and enclosures necessary to properly specifications fail to comply with the applicable code or protect all work and materials against damage by regulation, the Contracting Officer shall modify the dampness and cold, to dry out the work, and to facilitate contract by change order pursuant to the clause entitled the completion of the work. Any permanent heating Changes herein to conform to the code or regulation. equipment used shall be turned over to the PHA in the (b) The Contractor shall secure and pay for all permits, fees, condition and at the time required by the specifications. and licenses necessary for the proper execution and completion of the work. Where the PHA can arrange for 15. Availability and Use of Utility Services the issuance of all or part of these permits, fees and licenses, without cost to the Contractor, the contract (a) The PHA shall make all reasonably required amounts of amount shall be reduced accordingly. utilities available to the Contractor from existing outlets and supplies, as specified in the contract. Unless 13. Health, Safety, and Accident Prevention otherwise provided in the contract, the amount of each utility service consumed shall be charged to or paid for by (a) In performing this contract, the Contractor shall: the Contractor at prevailing rates charged to the PHA or, (1) Ensure that no laborer or mechanic shall be required where the utility is produced by the PHA, at reasonable to work in surroundings or under working conditions rates determined by the Contracting Officer. The which are unsanitary, hazardous, or dangerous to Contractor shall carefully conserve any utilities furnished his/her health and/or safety as determined under without charge. construction safety and health standards promulgated (b) The Contractor, at its expense and in a manner by the Secretary of Labor by regulation; satisfactory to the Contracting Officer, shall install and (2) Protect the lives, health, and safety of other persons; maintain all necessary temporary connections and (3) Prevent damage to property, materials, supplies, and distribution lines, and all meters required to measure the equipment; and, amount of each utility used for the purpose of determining (4) Avoid work interruptions. charges. Before final acceptance of the work by the PHA, (b) For these purposes, the Contractor shall: the Contractor shall remove all the temporary (1) Comply with regulations and standards issued by the connections, distribution lines, meters, and associated Secretary of Labor at 29 CFR Part 1926. Failure to paraphernalia. comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act 16. Protection of Existing Vegetation, Structures, (Public Law 91-54, 83 Stat. 96), 40 U.S.C. 3701 et Equipment, Utilities, and Improvements seq.; and (2) Include the terms of this clause in every subcontract (a) The Contractor shall preserve and protect all structures, so that such terms will be binding on each equipment, and vegetation (such as trees, shrubs, and subcontractor. grass) on or adjacent to the work site, which are not to be (c) The Contractor shall maintain an accurate record of removed under this contract, and which do not exposure data on all accidents incident to work unreasonably interfere with the work required under this performed under this contract resulting in death, contract. traumatic injury, occupational disease, or damage to (b) The Contractor shall only remove trees when specifically property, materials, supplies, or equipment, and shall authorized to do so, and shall avoid damaging vegetation report this data in the manner prescribed by 29 CFR Part that will remain in place. If any limbs or branches of trees 1904. are broken during performance of this contract, or by the (d) The Contracting Officer shall notify the Contractor of any careless operation of equipment, or by workmen, the noncompliance with these requirements and of the Contractor shall trim those limbs or branches with a clean corrective action required. This notice, when delivered to cut and paint the cut with a tree-pruning compound as the Contractor or the Contractor’s representative at the directed by the Contracting Officer. site of the work, shall be deemed sufficient notice of the (c) The Contractor shall protect from damage all existing noncompliance and corrective action required. After improvements and utilities (1) at or near the work site and receiving the notice, the Contractor shall immediately (2) on adjacent property of a third party, the locations of take corrective action. If the Contractor fails or refuses to which are made known to or should be known by the take corrective action promptly, the Contracting Officer Contractor. Prior to disturbing the ground at the may issue an order stopping all or part of the work until construction site, the Contractor shall ensure that all satisfactory corrective action has been taken. The underground utility lines are clearly marked. Contractor shall not base any claim or request for (d) The Contractor shall shore up, brace, underpin, secure, equitable adjustment for additional time or money on any and protect as necessary all foundations and other parts stop order issued under these circumstances. of existing structures adjacent to, adjoining, and in the (e) The Contractor shall be responsible for its subcontractors’ vicinity of the site, which may be affected by the compliance with the provisions of this clause. The excavations or other operations connected with the Contractor shall take such action with respect to any construction of the project. subcontract as the PHA, the Secretary of Housing and (e) Any equipment temporarily removed as a result of work Urban Development, or the Secretary of Labor shall under this contract shall be protected, cleaned, and direct as a means of enforcing such provisions. replaced in the same condition as at the time of award of this contract. (f) New work which connects to existing work shall correspond in all respects with that to which it
Previous editions are obsolete Page 6 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485 3G connects and/or be similar to existing work unless amended, 42 USC 7401 et seq., the Federal Water otherwise required by the specifications. Pollution Control Water Act, as amended, 33 U.S.C. 1251 (g) No structural members shall be altered or in any et seq., and standards issued pursuant thereto in the way weakened without the written authorization of the facilities in which this contract is to be performed. Contracting Officer, unless such work is clearly specified in the plans or specifications. 19. Ener gy Effi ci ency (h) If the removal of the existing work exposes discolored or unfinished surfaces, or work out of The Contractor shall comply with mandatory standards alignment, such surfaces shall be refinished, or the and policies relating to energy efficiency which are material replaced as necessary to make the continuous contained in the energy conservation plan issued in work uniform and harmonious. This, however, shall not compliance with the Energy Policy and Conservation Act be construed to require the refinishing or reconstruction (Pub.L. 94-163) for the State in which the work under the of dissimilar finishes previously exposed, or finished contract is performed. surfaces in good condition, but in different planes or on different levels when brought together by the removal 20. Inspection and Acceptance of Construction of intervening work, unless such refinishing or reconstruction is specified in the plans or specifications. (a) Definitions. As used in this clause - (i) The Contractor shall give all required notices to (1) “Acceptance” means the act of an authorized any adjoining or adjacent property owner or other party representative of the PHA by which the PHA approves before the commencement of any work. and assumes ownership of the work performed under this (j) The Contractor shall indemnify and save contract. Acceptance may be partial or complete. harmless the PHA from any damages on account of (2) “Inspection” means examining and testing the work settlement or the loss of lateral support of adjoining performed under the contract (including, when property, any damages from changes in topography appropriate, raw materials, equipment, components, and affecting drainage, and from all loss or expense and all intermediate assemblies) to determine whether it damages for which the PHA may become liable in conforms to contract requirements. consequence of such injury or damage to adjoining and (3) “Testing” means that element of inspection that adjacent structures and their premises. determines the properties or elements, including (k) The Contractor shall repair any damage to functional operation of materials, equipment, or their vegetation, structures, equipment, utilities, or components, by the application of established scientific improvements, including those that are the property of principles and procedures. a third party, resulting from failure to comply with the (b) The Contractor shall maintain an adequate inspection requirements of this contract or failure to exercise system and perform such inspections as will ensure that reasonable care in performing the work. If the Contractor the work performed under the contract conforms to fails or refuses to repair the damage promptly, the contract requirements. All work is subject to PHA Contracting Officer may have the necessary work inspection and test at all places and at all reasonable performed and charge the cost to the Contractor. times before acceptance to ensure strict compliance with the terms of the contract. 17. Temporary Buildings and Transportation of Materials (c) PHA inspections and tests are for the sole benefit of the PHA and do not: (1) relieve the Contractor of (a) Temporary buildings (e.g., storage sheds, shops, offices, responsibility for providing adequate quality control sanitary facilities) and utilities may be erected by the measures; (2) relieve the Contractor of responsibility for Contractor only with the approval of the Contracting loss or damage of the material before acceptance; (3) Officer and shall be built with labor and materials constitute or imply acceptance; or, (4) affect the furnished by the Contractor without expense to the PHA. continuing rights of the PHA after acceptance of the The temporary buildings and utilities shall remain the completed work under paragraph (j) below. property of the Contractor and shall be removed by the (d) The presence or absence of the PHA inspector does not Contractor at its expense upon completion of the work. relieve the Contractor from any contract requirement, nor With the written consent of the Contracting Officer, the is the inspector authorized to change any term or buildings and utilities may be abandoned and need not condition of the specifications without the Contracting be removed. Officer’s written authorization. All instructions and (b) The Contractor shall, as directed by the Contracting approvals with respect to the work shall be given to the Officer, use only established roadways, or use temporary Contractor by the Contracting Officer. roadways constructed by the Contractor when and as (e) The Contractor shall promptly furnish, without additional authorized by the Contracting Officer. When materials are charge, all facilities, labor, and material reasonably transported in prosecuting the work, vehicles shall not be needed for performing such safe and convenient loaded beyond the loading capacity recommended by the inspections and tests as may be required by the manufacturer of the vehicle or prescribed by any federal, Contracting Officer. The PHA may charge to the state, or local law or regulation. When it is necessary to Contractor any additional cost of inspection or test when cross curbs or sidewalks, the Contractor shall protect work is not ready at the time specified by the Contractor them from damage. The Contractor shall repair or pay for for inspection or test, or when prior rejection makes the repair of any damaged curbs, sidewalks, or roads. reinspection or retest necessary. The PHA shall perform all inspections and tests in a manner that will not 18. Clean Air and Water unnecessarily delay the work. Special, full size, and performance tests shall be performed as described in the The contactor shall comply with the Clean Air Act, as contract. (f) The PHA may conduct routine inspections of (g) The Contractor shall, without charge, replace or the construction site on a daily basis. correct work found by the PHA not to conform to Previous editions are obsolete Page 7 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G contract requirements, unless the PHA decides that it work or causes additional expense to the Contractor, an is in its interest to accept the work with an equitable adjustment shall be made in the contract price appropriate adjustment in contract price. The or the time of completion, and the contract shall be Contractor shall promptly segregate and remove modified in writing accordingly. rejected material from the premises. (h) If the Contractor does not promptly replace or 22. Warr ant y of T itl e correct rejected work, the PHA may (1) by contract or otherwise, replace or correct the work and charge the The Contractor warrants good title to all materials, cost to the Contractor, or (2) terminate for default the supplies, and equipment incorporated in the work and Contractor’s right to proceed. agrees to deliver the premises together with all (i)If any work requiring inspection is covered up without ap- improvements thereon free from any claims, liens or proval of the PHA, it must, if requested by the Contracting charges, and agrees further that neither it nor any other Officer, be uncovered at the expense of the Contractor. If person, firm or corporation shall have any right to a lien at any time before final acceptance of the entire work, the upon the premises or anything appurtenant thereto. PHA considers it necessary or advisable, to examine work already completed by removing or tearing it out, the 23. Warranty of Construction Contractor, shall on request, promptly furnish all necessary facilities, labor, and material. If such work is (a) In addition to any other warranties in this contract, the found to be defective or nonconforming in any material Contractor warrants, except as provided in paragraph (j) respect due to the fault of the Contractor or its of this clause, that work performed under this contract subcontractors, the Contractor shall defray all the conforms to the contract requirements and is free of any expenses of the examination and of satisfactory defect in equipment, material, or workmanship performed reconstruction. If, however, such work is found to meet by the Contractor or any subcontractor or supplier at any the requirements of the contract, the Contracting Officer tier. This warranty shall continue for a period of ________ shall make an equitable adjustment to cover the cost of (one year unless otherwise indicated) from the date of the examination and reconstruction, including, if final acceptance of the work. If the PHA takes possession completion of the work was thereby delayed, an of any part of the work before final acceptance, this extension of time. warranty shall continue for a period of (one year unless (j)The Contractor shall notify the Contracting Officer, in otherwise indicated) from the date that the PHA takes writing, as to the date when in its opinion all or a possession. designated portion of the work will be substantially (b) The Contractor shall remedy, at the Contractor’s completed and ready for inspection. If the Architect expense, any failure to conform, or any defect. In determines that the state of preparedness is as addition, the Contractor shall remedy, at the Contractor’s represented, the PHA will promptly arrange for the expense, any damage to PHA-owned or controlled real or inspection. Unless otherwise specified in the contract, the personal property when the damage is the result of— PHA shall accept, as soon as practicable after completion (1) The Contractor’s failure to conform to contract require- and inspection, all work required by the contract or that ments; or portion of the work the Contracting Officer determines (2) Any defects of equipment, material, workmanship or and designates can be accepted separately. Acceptance design furnished by the Contractor. shall be final and conclusive except for latent defects, (c) The Contractor shall restore any work damaged in fraud, gross mistakes amounting to fraud, or the PHA’s fulfilling the terms and conditions of this clause. The right under any warranty or guarantee. Contractor’s warranty with respect to work repaired or replaced will run for (one year unless otherwise indicated) 21. Use and Possession Prior to Completion from the date of repair or replacement. (d) The Contracting Officer shall notify the Contractor, in (a) The PHA shall have the right to take possession of or use writing, within a reasonable time after the discovery of any completed or partially completed part of the work. any failure, defect or damage. Before taking possession of or using any work, the (e) If the Contractor fails to remedy any failure, defect, or Contracting Officer shall furnish the Contractor a list of damage within a reasonable time after receipt of notice, items of work remaining to be performed or corrected on the PHA shall have the right to replace, repair or those portions of the work that the PHA intends to take otherwise remedy the failure, defect, or damage at the possession of or use. However, failure of the Contracting Contractor’s expense. Officer to list any item of work shall not relieve the (f) With respect to all warranties, express or implied, from Contractor of responsibility for complying with the terms subcontractors, manufacturers, or suppliers for work of the contract. The PHA’s possession or use shall not be performed and materials furnished under this contract, deemed an acceptance of any work under the contract. the Contractor shall: (b) While the PHA has such possession or use, the (1) Obtain all warranties that would be given in normal Contractor shall be relieved of the responsibility for (1) commercial practice; the loss of or damage to the work resulting from the (2) Require all warranties to be executed in writing, for the PHA’s possession or use, notwithstanding the terms of benefit of the PHA; and, the clause entitled Permits and Codes herein; (2) all (3) Enforce all warranties for the benefit of the PHA. maintenance costs on the areas occupied; and, (3) (g) In the event the Contractor’s warranty under paragraph furnishing heat, light, power, and water used in the areas (a) of this clause has expired, the PHA may bring suit at its own expense to enforce a subcontractor’s, occupied without proper remuneration therefore. If prior manufacturer’s or supplier’s warranty. possession or use by the PHA delays the progress of the (h) Unless a defect is caused by the negligence of Contractor shall not be liable for the repair of any defect the Contractor or subcontractor or supplier at any tier, the of material or design furnished by the PHA nor for the
Previous editions are obsolete Page 8 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485 3G Officer; (3) the material is insured to cover its full value; Contractor and the Contracting Officer. and (4) the material will be used to perform this contract. (c) When a proposed modification requires the approval of Before any progress payment which includes delivered HUD prior to its issuance (e.g., a change order that material is made, the Contractor shall furnish such exceeds the PHA’s approved threshold), such documentation as the Contracting Officer may require to modification shall not be effective until the required assure the protection of the PHA’s interest in such approval is received by the PHA. materials. The Contractor shall remain responsible for such stored material notwithstanding the transfer of title 29. Changes to the PHA. (h) All material and work covered by progress (a) The Contracting Officer may, at any time, without notice payments made shall, at the time of payment become to the sureties, by written order designated or indicated to the sole property of the PHA, but this shall not be construed be a change order, make changes in the work within the as (1) relieving the Contractor from the sole responsibility for general scope of the contract including changes: all material and work upon which payments have been (1) In the specifications (including drawings and designs); made or the restoration of any damaged work; or, (2) (2) In the method or manner of performance of the work; waiving the right of the PHA to require the fulfillment of all (3) PHA-furnished facilities, equipment, materials, of the terms of the contract. In the event the work of the services, or site; or, Contractor has been damaged by other contractors or (4) Directing the acceleration in the performance of the persons other than employees of the PHA in the course work. of their employment, the Contractor shall restore such (b) Any other written order or oral order (which, as used in damaged work without cost to the PHA and to seek this paragraph (b), includes direction, instruction, redress for its damage only from those who directly interpretation, or determination) from the Contracting caused it. Officer that causes a change shall be treated as a (i) The PHA shall make the final payment due the Contractor change order under this clause; provided, that the under this contract after (1) completion and final Contractor gives the Contracting Officer written notice acceptance of all work; and (2) presentation of release of stating (1) the date, circumstances and source of the all claims against the PHA arising by virtue of this order and (2) that the Contractor regards the order as a contract, other than claims, in stated amounts, that the change order. Contractor has specifically excepted from the operation of (c) Except as provided in this clause, no order, statement or the release. Each such exception shall embrace no more conduct of the Contracting Officer shall be treated as a than one claim, the basis and scope of which shall be change under this clause or entitle the Contractor to an clearly defined. The amounts for such excepted claims equitable adjustment. shall not be included in the request for final payment. A (d) If any change under this clause causes an increase or release may also be required of the assignee if the decrease in the Contractor’s cost of, or the time required Contractor’s claim to amounts payable under this contract for the performance of any part of the work under this has been assigned. contract, whether or not changed by any such order, the (j) Prior to making any payment, the Contracting Officer may Contracting Officer shall make an equitable adjustment require the Contractor to furnish receipts or other and modify the contract in writing. However, except for a evidence of payment from all persons performing work adjustment based on defective specifications, no and supplying material to the Contractor, if the proposal for any change under paragraph (b) above shall Contracting Officer determines such evidence is be allowed for any costs incurred more than 20 days (5 necessary to substantiate claimed costs. days for oral orders) before the Contractor gives written (k) The PHA shall not; (1) determine or adjust any claims for notice as required. In the case of defective specifications payment or disputes arising there under between the for which the PHA is responsible, the equitable Contractor and its subcontractors or material suppliers; adjustment shall include any increased cost reasonably or, (2) withhold any moneys for the protection of the incurred by the Contractor in attempting to comply with subcontractors or material suppliers. The failure or the defective specifications. refusal of the PHA to withhold moneys from the (e) The Contractor must assert its right to an adjustment Contractor shall in nowise impair the obligations of any under this clause within 30 days after (1) receipt of a surety or sureties under any bonds furnished under this written change order under paragraph (a) of this clause, contract. or (2) the furnishing of a written notice under paragraph (b) of this clause, by submitting a written statement 28. Contract Modifications describing the general nature and the amount of the proposal. If the facts justify it, the Contracting Officer may (a) Only the Contracting Officer has authority to modify any extend the period for submission. The proposal may be term or condition of this contract. Any contract included in the notice required under paragraph (b) modification shall be authorized in writing. above. No proposal by the Contractor for an equitable (b) The Contracting Officer may modify the contract adjustment shall be allowed if asserted after final unilaterally (1) pursuant to a specific authorization payment under this contract. stated in a contract clause (e.g., Changes); or (2) for (f) The Contractor’s written proposal for equitable adjustment administrative matters which do not change the rights or shall be submitted in the form of a lump sum proposal supported with an itemized breakdown of all increases responsibilities of the parties (e.g., change in the PHA and decreases in the contract in at least the following address). All other contract modifications shall be in the details: form of supplemental agreements signed by the (1) Direct Costs. Materials (list individual items, the costs (identified with specific work to be performed); quantity and unit cost of each, and the aggregate Construction equipment exclusively necessary for the cost); Transportation and delivery costs associated change; Costs of preparation and/ or revision to shop with materials; Labor breakdowns by hours or unit drawings resulting from the change; Worker’s Previous editions are obsolete Page 10 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G Compensation and Public Liability Insurance; costs incurred more than 20 days before the Contractor Employment taxes under FICA and FUTA; and, Bond shall have notified the Contracting Officer in writing of the Costs when size of change warrants revision. act or failure to act involved (but this requirement shall (2) Indirect Costs. Indirect costs may include overhead, not apply as to a claim resulting from a suspension general and administrative expenses, and fringe order); and, (2) unless the claim, in an amount stated, is benefits not normally treated as direct costs. asserted in writing as soon as practicable after the (3) Profit. The amount of profit shall be negotiated and termination of the suspension, delay, or interruption, but may vary according to the nature, extent, and not later than the date of final payment under the complexity of the work required by the change. contract. The allowability of the direct and indirect costs shall be determined in accordance with the Contract Cost 31. Disputes Principles and Procedures for Commercial Firms in Part of the Federal Acquisition Regulation (48 CFR 1-31), (a) “Claim,” as used in this clause, means a written demand as implemented by HUD Handbook 2210.18, in effect on or written assertion by one of the contracting parties the date of this contract. The Contractor shall not be seeking, as a matter of right, the payment of money in a allowed a profit on the profit received by any sum certain, the adjustment or interpretation of contract subcontractor. Equitable adjustments for deleted work terms, or other relief arising under or relating to the shall include a credit for profit and may include a credit contract. A claim arising under the contract, unlike a for indirect costs. On proposals covering both increases claim relating to the contract, is a claim that can be and decreases in the amount of the contract, the resolved under a contract clause that provides for the application of indirect costs and profit shall be on the net- relief sought by the claimant. A voucher, invoice, or other change in direct costs for the Contractor or subcontractor routine request for payment that is not in dispute when performing the work. submitted is not a claim. The submission may be (g) The Contractor shall include in the proposal its request converted to a claim by complying with the requirements for time extension (if any), and shall include sufficient of this clause, if it is disputed either as to liability or information and dates to demonstrate whether and to amount or is not acted upon in a reasonable time. what extent the change will delay the completion of the (b) Except for disputes arising under the clauses entitled contract in its entirety. Labor Standards - Davis Bacon and Related Acts, herein, (h) The Contracting Officer shall act on proposals within 30 all disputes arising under or relating to this contract, days after their receipt, or notify the Contractor of the including any claims for damages for the alleged breach date when such action will be taken. thereof which are not disposed of by agreement, shall be (i) Failure to reach an agreement on any proposal shall be a resolved under this clause. dispute under the clause entitled Disputes herein. (c) All claims by the Contractor shall be made in writing and Nothing in this clause, however, shall excuse the submitted to the Contracting Officer for a written Contractor from proceeding with the contract as changed. decision. A claim by the PHA against the Contractor (j) Except in an emergency endangering life or property, no shall be subject to a written decision by the Contracting change shall be made by the Contractor without a prior Officer. order from the Contracting Officer. (d) The Contracting Officer shall, within 60 (unless otherwise indicated) days after receipt of the request, decide the 30. Suspension of Work claim or notify the Contractor of the date by which the decision will be made. (a) The Contracting Officer may order the Contractor in (e) The Contracting Officer’s decision shall be final unless writing to suspend, delay, or interrupt all or any part of the the Contractor (1) appeals in writing to a higher level in work of this contract for the period of time that the the PHA in accordance with the PHA’s policy and Contracting Officer determines appropriate for the procedures, (2) refers the appeal to an independent convenience of the PHA. mediator or arbitrator, or (3) files suit in a court of (b) If the performance of all or any part of the work is, for an competent jurisdiction. Such appeal must be made within unreasonable period of time, suspended, delayed, or (30 unless otherwise indicated) days after receipt of the interrupted (1) by an act of the Contracting Officer in the Contracting Officer’s decision. administration of this contract, or (2) by the Contracting (f) The Contractor shall proceed diligently with performance Officer’s failure to act within the time specified (or within a of this contract, pending final resolution of any request for reasonable time if not specified) in this contract an relief, claim, appeal, or action arising under or relating to adjustment shall be made for any increase in the cost of the contract, and comply with any decision of the performance of the contract (excluding profit) necessarily Contracting Officer. caused by such unreasonable suspension, delay, or interruption and the contract modified in writing 32. Default accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or (a) If the Contractor refuses or fails to prosecute the work, or interruption to the extent that performance would have any separable part thereof, with the diligence that will insure its completion within the time specified in this been so suspended, delayed, or interrupted by any other contract, or any extension thereof, or fails to complete cause, including the fault or negligence of the Contractor said work within this time, the Contracting Officer may, by or for which any equitable adjustment is provided for or written notice to the Contractor, terminate the right to excluded under any other provision of this contract. (c) A claim under this clause shall not be allowed (1) for any proceed with the work (or separable part of the work) that may take possession of and use any materials, has been delayed. In this event, the PHA may take over equipment, and plant on the work site necessary for the work and complete it, by contract or otherwise, and completing the work. The Contractor and its sureties shall
Previous editions are obsolete Page 11 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G be liable for any damage to the PHA resulting from the completion of the work together with any increased costs Contractor’s refusal or failure to complete the work within occasioned the PHA in completing the work. the specified time, whether or not the Contractor’s right to (c) If the PHA does not terminate the Contractor’s right to proceed with the work is terminated. This liability includes proceed, the resulting damage will consist of liquidated any increased costs incurred by the PHA in completing damages until the work is completed or accepted. the work. (b) The Contractor’s right to proceed shall not be terminated 34. Termination for Convenience or the Contractor charged with damages under this clause if— (a) The Contracting Officer may terminate this contract in (1) The delay in completing the work arises from whole, or in part, whenever the Contracting Officer unforeseeable causes beyond the control and without determines that such termination is in the best interest of the fault or negligence of the Contractor. Examples of the PHA. Any such termination shall be effected by such causes include (i) acts of God, or of the public delivery to the Contractor of a Notice of Termination enemy, (ii) acts of the PHA or other governmental specifying the extent to which the performance of the entity in either its sovereign or contractual capacity, work under the contract is terminated, and the date upon (iii) acts of another contractor in the performance of a which such termination becomes effective. contract with the PHA, (iv) fires, (v) floods, (vi) (b) If the performance of the work is terminated, either in epidemics, (vii) quarantine restrictions, (viii) strikes, whole or in part, the PHA shall be liable to the Contractor (ix) freight embargoes, (x) unusually severe weather, for reasonable and proper costs resulting from such or (xi) delays of subcontractors or suppliers at any tier termination upon the receipt by the PHA of a properly arising from unforeseeable causes beyond the control presented claim setting out in detail: (1) the total cost of and without the fault or negligence of both the the work performed to date of termination less the total Contractor and the subcontractors or suppliers; and amount of contract payments made to the Contractor; (2) (2) The Contractor, within days (10 days unless otherwise the cost (including reasonable profit) of settling and indicated) from the beginning of such delay (unless paying claims under subcontracts and material orders for extended by the Contracting Officer) notifies the work performed and materials and supplies delivered to Contracting Officer in writing of the causes of delay. the site, payment for which has not been made by the The Contracting Officer shall ascertain the facts and PHA to the Contractor or by the Contractor to the the extent of the delay. If, in the judgment of the subcontractor or supplier; (3) the cost of preserving and Contracting Officer, the findings of fact warrant such protecting the work already performed until the PHA or action, time for completing the work shall be extended assignee takes possession thereof or assumes by written modification to the contract. The findings of responsibility therefore; (4) the actual or estimated cost of the Contracting Officer shall be reduced to a written legal and accounting services reasonably necessary to decision which shall be subject to the provisions of prepare and present the termination claim to the PHA; the Disputes clause of this contract. and (5) an amount constituting a reasonable profit on the (c) If, after termination of the Contractor’s right to proceed, it value of the work performed by the Contractor. is determined that the Contractor was not in default, or (c) The Contracting Officer will act on the Contractor’s claim that the delay was excusable, the rights and obligations within days (60 days unless otherwise indicated) of of the parties will be the same as if the termination had receipt of the Contractor’s claim. been for convenience of the PHA. (d) Any disputes with regard to this clause are expressly made subject to the provisions of the Disputes clause of 33. Liquidated Damages this contract.
(a) If the Contractor fails to complete the work within the time 35. Assignment of Contract specified in the contract, or any extension, as specified in the clause entitled Default of this contract, the Contractor The Contractor shall not assign or transfer any interest in shall pay to the PHA as liquidated damages, the sum of this contract; except that claims for monies due or to $ __________ Contracting Officer insert amount] for become due from the PHA under the contract may be each day of delay. If different completion dates are assigned to a bank, trust company, or other financial specified in the contract for separate parts or stages of institution. Such assignments of claims shall only be the work, the amount of liquidated damages shall be made with the written concurrence of the Contracting assessed on those parts or stages which are delayed. To Officer. If the Contractor is a partnership, this contract the extent that the Contractor’s delay or nonperformance shall inure to the benefit of the surviving or remaining is excused under another clause in this contract, member(s) of such partnership as approved by the liquidated damages shall not be due the PHA. The Contracting Officer. Contractor remains liable for damages caused other than by delay. 36. Insurance (b) If the PHA terminates the Contractor’s right to proceed, the resulting damage will consist of liquidated damages (a) Before commencing work, the Contractor and each until such reasonable time as may be required for final subcontractor shall furnish the PHA with certificates of insurance showing the following insurance is in force and will insure all operations under the Contract: (1) Workers’ Compensation, in accordance with state or Territorial Workers’ Compensation laws. (2) Commercial General Liability with a combined single limit for bodily injury and property damage of not less than $ _______ [Contracting Officer insert amount]
Previous editions are obsolete Page 12 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G per occurrence to protect the Contractor and each (2) “Subcontractor” means any supplier, vendor, or firm subcontractor against claims for bodily injury or death that furnishes supplies, materials, equipment, or and damage to the property of others. This shall services to or for the Contractor or another cover the use of all equipment, hoists, and vehicles subcontractor. on the site(s) not covered by Automobile Liability (b) The Contractor shall not enter into any subcontract with under (3) below. If the Contractor has a “claims- any subcontractor who has been temporarily denied made” policy, then the following additional participation in a HUD program or who has been requirements apply: the policy must provide a suspended or debarred from participating in contracting “retroactive date” which must be on or before the programs by any agency of the United States execution date of the Contract; and the extended Government or of the state in which the work under this reporting period may not be less than five years contract is to be performed. following the completion date of the Contract. (c) The Contractor shall be as fully responsible for the acts or (3) Automobile Liability on owned and non -owned motor omissions of its subcontractors, and of persons either vehicles used on the site(s) or in connection therewith directly or indirectly employed by them as for the acts or for a combined single limit for bodily injury and omissions of persons directly employed by the property damage of not less than $______ Contractor. [Contracting Officer insert amount] per occurrence. (d) The Contractor shall insert appropriate clauses in all (b) Before commencing work, the Contractor shall furnish the subcontracts to bind subcontractors to the terms and PHA with a certificate of insurance evidencing that conditions of this contract insofar as they are Builder’s Risk (fire and extended coverage) Insurance on applicable to the work of subcontractors. all work in place and/or materials stored at the building (e) Nothing contained in this contract shall create any site(s), including foundations and building equipment, is contractual relationship between any subcontractor and in force. The Builder’s Risk Insurance shall be for the the PHA or between the subcontractor and HUD. benefit of the Contractor and the PHA as their interests may appear and each shall be named in the policy or 38. Subcontracting with Small and Minority Firms, policies as an insured. The Contractor in installing Women’s Business Enterprise, and Labor Surplus equipment supplied by the PHA shall carry insurance on Area Firms such equipment from the time the Contractor takes possession thereof until the Contract work is accepted by The Contractor shall take the following steps to ensure the PHA. The Builder’s Risk Insurance need not be that, whenever possible, subcontracts are awarded to carried on excavations, piers, footings, or foundations small business firms, minority firms, women’s business until such time as work on the superstructure is started. It enterprises, and labor surplus area firms: need not be carried on landscape work. Policies shall (a) Placing qualified small and minority businesses and furnish coverage at all times for the full cash value of all women’s business enterprises on solicitation lists; completed construction, as well as materials in place (b) Ensuring that small and minority businesses and and/or stored at the site(s), whether or not partial women’s business enterprises are solicited whenever payment has been made by the PHA. The Contractor they are potential sources; may terminate this insurance on buildings as of the date (c) Dividing total requirements, when economically feasible, taken over for occupancy by the PHA. The Contractor is into smaller tasks or quantities to permit maximum not required to carry Builder’s Risk Insurance for participation by small and minority businesses and modernization work which does not involve structural women’s business enterprises; alterations or additions and where the PHA’s existing fire (d) Establishing delivery schedules, where the and extended coverage policy can be endorsed to requirements of the contract permit, which encourage include such work. participation by small and minority businesses and (c) All insurance shall be carried with companies which are women’s business enterprises; and financially responsible and admitted to do business in the (e) Using the services and assistance of the U.S. Small State in which the project is located. If any such Business Administration, the Minority Business insurance is due to expire during the construction period, Development Agency of the U.S. Department of the Contractor (including subcontractors, as applicable) Commerce, and State and local governmental small shall not permit the coverage to lapse and shall furnish business agencies. evidence of coverage to the Contracting Officer. All certificates of insurance, as evidence of coverage, shall 39. Equal Employment Opportunity provide that no coverage may be canceled or non- renewed by the insurance company until at least 30 days During the performance of this contract, the Contractor prior written notice has been given to the Contracting agrees as follows: Officer. (a) The Contractor shall not discriminate against any employee or applicant for employment because of race, 37. Subcontracts color, religion, sex, national origin, or handicap. (b) The Contractor shall take affirmative action to ensure that (a) Definitions. As used in this contract - applicants are employed, and that employees are treated (1) “Subcontract” means any contract, purchase order, or during employment without regard to their race, color, other purchase agreement, including modifications religion, sex, national origin, or handicap. Such action and change orders to the foregoing, entered into by a shall include, but not be limited to, (1) employment, (2) subcontractor to furnish supplies, materials, upgrading, (3) demotion, (4) transfer, (5) recruitment or equipment, and services for the performance of the recruitment advertising, (6) layoff or termination, (7) rates prime contract or a subcontract. of pay or other forms of compensation, and (8) selection for training, including apprenticeship.
Previous editions are obsolete Page 13 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G (c) The Contractor shall post in conspicuous places available (a) The work to be performed under this contract is subject to to employees and applicants for employment the notices the requirements of section 3 of the Housing and Urban to be provided by the Contracting Officer that explain this Development Act of 1968, as amended, 12 U.S.C. 1701u clause. (section 3). The purpose of section 3 is to ensure that (d) The Contractor shall, in all solicitations or advertisements employment and other economic opportunities generated for employees placed by or on behalf of the Contractor, by HUD assistance or HUD-assisted projects covered by state that all qualified applicants will receive section 3, shall, to the greatest extent feasible, be consideration for employment without regard to race, directed to low- and very low-income persons, particularly color, religion, sex, national origin, or handicap. persons who are recipients of HUD assistance for (e) The Contractor shall send, to each labor union or housing. representative of workers with which it has a collective (b) The parties to this contract agree to comply with HUD's bargaining agreement or other contract or understanding, regulations in 24 CFR Part 135, which implement section the notice to be provided by the Contracting Officer 3. As evidenced by their execution of this contract, the advising the labor union or workers’ representative of the parties to this contract certify that they are under no Contractor’s commitments under this clause, and post contractual or other impediment that would prevent them copies of the notice in conspicuous places available to from complying with the Part 135 regulations. employees and applicants for employment. (c) The contractor agrees to send to each labor organization (f) The Contractor shall comply with Executive Order 11246, or representative of workers with which the contractor as amended, and the rules, regulations, and orders of the has a collective bargaining agreement or other Secretary of Labor. understanding, if any, a notice advising the labor (g) The Contractor shall furnish all information and reports organization or workers' representative of the contractor's required by Executive Order 11246, as amended, Section commitments under this section 3 clause, and will post 503 of the Rehabilitation Act of 1973, as amended, and copies of the notice in conspicuous places at the work by rules, regulations, and orders of the Secretary of site where both employees and applicants for training Labor, or pursuant thereto. The Contractor shall permit and employment positions can see the notice. The notice access to its books, records, and accounts by the shall describe the section 3 preference, shall set forth Secretary of Labor for purposes of investigation to minimum number and job titles subject to hire, availability ascertain compliance with such rules, regulations, and of apprenticeship and training positions, the orders. qualifications for each; and the name and location of the (h) In the event of a determination that the Contractor is not person(s) taking applications for each of the positions; in compliance with this clause or any rule, regulation, or and the anticipated date the work shall begin. order of the Secretary of Labor, this contract may be (d) The contractor agrees to include this section 3 clause in canceled, terminated, or suspended in whole or in part, every subcontract subject to compliance with regulations and the Contractor may be declared ineligible for further in 24 CFR Part 135, and agrees to take appropriate Government contracts, or Federally assisted construction action, as provided in an applicable provision of the contracts under the procedures authorized in Executive subcontract or in this section 3 clause, upon a finding that Order 11246, as amended. In addition, sanctions may be the subcontractor is in violation of the regulations in 24 imposed and remedies invoked against the Contractor as CFR Part 135. The contractor will not subcontract with provided in Executive Order 11246, as amended, the any subcontractor where the contractor has notice or rules, regulations, and orders of the Secretary of Labor, knowledge that the subcontractor has been found in or as otherwise provided by law. violation of the regulations in 24 CFR Part 135. (i) The Contractor shall include the terms and conditions of (e) The contractor will certify that any vacant employment this clause in every subcontract or purchase order unless positions, including training positions, that are filled (1) exempted by the rules, regulations, or orders of the after the contractor is selected but before the contract is Secretary of Labor issued under Executive Order 11246, executed, and (2) with persons other than those to whom as amended, so that these terms and conditions will be the regulations of 24 CFR Part 135 require employment binding upon each subcontractor or vendor. The opportunities to be directed, were not filled to circumvent Contractor shall take such action with respect to any the contractor's obligations under 24 CFR Part 135. subcontract or purchase order as the Secretary of (f) Noncompliance with HUD's regulations in 24 CFR Part Housing and Urban Development or the Secretary of 135 may result in sanctions, termination of this contract Labor may direct as a means of enforcing such for default, and debarment or suspension from future provisions, including sanctions for noncompliance; HUD assisted contracts. provided that if the Contractor becomes involved in, or is (g) With respect to work performed in connection with section threatened with, litigation with a subcontractor or vendor 3 covered Indian housing assistance, section 7(b) of the as a result of such direction, the Contractor may request Indian Self-Determination and Education Assistance Act the United States to enter into the litigation to protect the (25 U.S.C. 450e) also applies to the work to be interests of the United States. performed under this contract. Section 7(b) requires that (j) Compliance with the requirements of this clause shall be to the greatest extent feasible (i) preference and to the maximum extent consistent with, but not in opportunities for training and employment shall be given derogation of, compliance with section 7(b) of the Indian to Indians, and (ii) preference in the award of contracts Self-Determination and Education Assistance Act and the and subcontracts shall be given to Indian organizations Indian Preference clause of this contract. and Indian-owned Economic Enterprises. Parties to this 40. Employment, Training, and Contracting contract that are subject to the provisions of section 3 Opportunities for Low-Income Persons, Section 3 of and section 7(b)agree to comply with section 3 to the the Housing and Urban Development Act of 1968. maximum extent feasible, but not in derogation of compliance with section 7(b). 41. Interest of Members of Congress
Previous editions are obsolete Page 14 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G No member of or delegate to the Congress of the United (a) The PHA, HUD, or Comptroller General of the United States of America shall be admitted to any share or part States, or any of their duly authorized representatives of this contract or to any benefit that may arise therefrom. shall, until 3 years after final payment under this contract, have access to and the right to examine any of the 42. Interest of Members, Officers, or Employees and Contractor’s directly pertinent books, documents, papers, Former Members, Officers, or Employees or other records involving transactions related to this contract for the purpose of making audit, examination, No member, officer, or employee of the PHA, no member excerpts, and transcriptions. of the governing body of the locality in which the project (b) The Contractor agrees to include in first-tier subcontracts is situated, no member of the governing body of the under this contract a clause substantially the same as locality in which the PHA was activated, and no other paragraph (a) above. “Subcontract,” as used in this public official of such locality or localities who exercises clause, excludes purchase orders not exceeding any functions or responsibilities with respect to the $10,000. project, shall, during his or her tenure, or for one year (c) The periods of access and examination in paragraphs (a) thereafter, have any interest, direct or indirect, in this and (b) above for records relating to (1) appeals under contract or the proceeds thereof. the Disputes clause of this contract, (2) litigation or settlement of claims arising from the performance of this 43. Limitations on Payments made to Influence Certain contract, or (3) costs and expenses of this contract to Federal Financial Transactions which the PHA, HUD, or Comptroller General or any of their duly authorized representatives has taken exception (a) The Contractor agrees to comply with Section 1352 of shall continue until disposition of such appeals, litigation, Title 31, United States Code which prohibits the use of claims, or exceptions. Federal appropriated funds to pay any person for influencing or attempting to influence an officer or 46. Labor Standards - Davis-Bacon and Related Acts employee of any agency, a Member of Congress, and officer or employee of Congress, or an employee of a If the total amount of this contract exceeds $2,000, the Member of Congress in connection with any of the Federal labor standards set forth in the clause below following covered Federal actions: the awarding of any shall apply to the development or construction work to be Federal contract; the making of any Federal grant; the performed under the contract. making of any Federal loan; the entering into of any (a) Minimum Wages. cooperative agreement; or the modification of any (1) All laborers and mechanics employed under this Federal contract, grant, loan, or cooperative agreement. contract in the development or construction of the (b) The Contractor further agrees to comply with the project(s) involved will be paid unconditionally and not requirement of the Act to furnish a disclosure (OMB less often than once a week, and without subsequent Standard Form LLL, Disclosure of Lobbying Activities) if deduction or rebate on any account (except such payroll any funds other than Federal appropriated funds deductions as are permitted by regulations issued by the (including profit or fee received under a covered Federal Secretary of Labor under the Copeland Act (29 CFR Part transaction) have been paid, or will be paid, to any 3)), the full amount of wages and bona fide fringe benefits person for influencing or attempting to influence an officer (or cash equivalents thereof) due at time of payment or employee of any agency, a Member of Congress, an computed at rates not less than those contained in the officer or employee of Congress, or an employee of a wage determination of the Secretary of Labor which is Member of Congress in connection with a Federal attached hereto and made a part hereof, regardless of contract, grant, loan, or cooperative agreement. any contractual relationship which may be alleged to exist between the Contractor and such laborers and 44. Royalties and Patents mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section The Contractor shall pay all royalties and license fees. It 1(b)(2) of the Davis-Bacon Act on behalf of laborers or shall defend all suits or claims for infringement of any mechanics are considered wages paid to such laborers patent rights and shall save the PHA harmless from loss or mechanics, subject to the provisions of 29 CFR on account thereof; except that the PHA shall be 5.5(a)(1)(iv); also, regular contributions made or costs responsible for all such loss when a particular design, incurred for more than a weekly period (but not less often process or the product of a particular manufacturer or than quarterly) under plans, funds, or programs which manufacturers is specified and the Contractor has no cover the regular weekly period, are deemed to be reason to believe that the specified design, process, or constructively made or incurred during such weekly product is an infringement. If, however, the Contractor period. Such laborers and mechanics shall be paid the has reason to believe that any design, process or product appropriate wage rate and fringe benefits in the wage specified is an infringement of a patent, the Contractor determination for the classification of work actually shall promptly notify the Contracting Officer. Failure to performed, without regard to skill, except as provided in give such notice shall make the Contractor responsible 29 CFR 5.5(a)(4). Laborers or mechanics performing for resultant loss. work in more than one classification may be compensated at the rate specified for each classification 45. Examination and Retention of Contractor’s Records for the time actually worked therein; provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and Previous editions are obsolete Page 15 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G accessible place where it can be easily seen by the program; provided, that the Secretary of Labor has workers. found, upon the written request of the Contractor, that (2) (i) Any class of laborers or mechanics, including the applicable standards of the Davis-Bacon Act have helpers, which is not listed in the wage been met. The Secretary of Labor may require the determination and which is to be employed under Contractor to set aside in a separate account assets the contract shall be classified in conformance for the meeting of obligations under the plan or with the wage determination. HUD shall approve program. an additional classification and wage rate and (b) Withholding of funds. HUD or its designee shall, upon its fringe benefits therefor only when all the following own action or upon written request of an authorized criteria have been met: (A) The work to be representative of the Department of Labor, withhold or performed by the classification requested is not cause to be withheld from the Contractor under this performed by a classification in the wage contract or any other Federal contract with the same determination; and (B) The classification is utilized prime Contractor, or any other Federally-assisted in the area by the construction industry; and (C) contract subject to Davis-Bacon prevailing wage The proposed wage rate, including any bona fide requirements, which is held by the same prime fringe benefits, bears a reasonable relationship to Contractor, so much of the accrued payments or the wage rates contained in the wage advances as may be considered necessary to pay determination. laborers and mechanics, including apprentices, trainees, (ii) If the Contractor and the laborers and mechanics and helpers, employed by the Contractor or any to be employed in the classification (if known), or subcontractor the full amount of wages required by the their representatives, and HUD or its designee contract. In the event of failure to pay any laborer or agree on the classification and wage rate mechanic, including any apprentice, trainee, or helper, (including the amount designated for fringe employed or working in the construction or development benefits where appropriate), a report of the action of the project, all or part of the wages required by the taken shall be sent by HUD or its designee to the contract, HUD or its designee may, after written notice to Administrator of the Wage and Hour Division, the Contractor, take such action as may be necessary to Employee Standards Administration, U.S. cause the suspension of any further payment, advance, Department of Labor, Washington, DC 20210. or guarantee of funds until such violations have ceased. The Administrator, or an authorized HUD or its designee may, after written notice to the representative, will approve, modify, or disapprove Contractor, disburse such amounts withheld for and on every additional classification action within 30 account of the Contractor or subcontractor to the days of receipt and so advise HUD or its designee respective employees to whom they are due. or will notify HUD or its designee within the 30-day (c) Payrolls and basic records. period that additional time is necessary. (1) Payrolls and basic records relating thereto shall be (iii) In the event the Contractor, the maintained by the Contractor during the course of the laborers or mechanics to be employed in the work and preserved for a period of three years classification or their representatives, and HUD or thereafter for all laborers and mechanics working in its designee do not agree on the proposed the construction or development of the project. Such classification and wage rate (including the amount records shall contain the name, address, and social designated for fringe benefits, where appropriate), security number of each such worker, his or her HUD or its designee shall refer the questions, correct classification, hourly rates of wages paid including the views of all interested parties and the (including rates of contributions or costs anticipated recommendation of HUD or its designee, to the for bona fide fringe benefits or cash equivalents Administrator of the Wage and Hour Division for thereof of the types described in section 1(b)(2)(B) of determination. The Administrator, or an authorized the Davis-Bacon Act), daily and weekly number of representative, will issue a determination within hours worked, deductions made, and actual wages days of receipt and so advise HUD or its paid. Whenever the Secretary of Labor has found, designee or will notify HUD or its designee within under 29 CFR 5.5(a)(1)(iv), that the wages of any the 30-day period that additional time is necessary. laborer or mechanic include the amount of costs (iv) The wage rate (including fringe benefits reasonably anticipated in providing benefits under a where appropriate) determined pursuant to plan or program described in section 1(b)(2)(B) of the subparagraphs (a)(2)(ii) or (iii) of this clause shall Davis-Bacon Act, the Contractor shall maintain be paid to all workers performing work in the records which show that the commitment to provide classification under this contract from the first day such benefits is enforceable, that the plan or program on which work is performed in classification. is financially responsible, and that the plan or (3) Whenever the minimum wage rate prescribed in the program has been communicated in writing to the contract for a class of laborers or mechanics includes laborers or mechanics affected, and records which a fringe benefit which is not expressed as an hourly show the costs anticipated or the actual cost incurred rate, the Contractor shall either pay the benefit as in providing such benefits. Contractors employing stated in the wage determination or shall pay another apprentices or trainees under approved programs bona fide fringe benefit or an hourly cash equivalent shall maintain written evidence of the registration of thereof. apprenticeship programs and certification of trainee (4) If the Contractor does not make payments to a trustee programs, the registration of the apprentices and or other third person, the Contractor may consider as trainees, and the ratios and wage rates prescribed in part of the wages of any laborer or mechanic the the applicable programs. amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or
Previous editions are obsolete Page 16 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G (2) (i) The Contractor shall submit weekly for each week make such records available may be grounds for in which any contract work is performed a copy of debarment action pursuant to 29 CFR 5.12. all payrolls to the Contracting Officer for (d) (1) Apprentices. Apprentices will be permitted to work at transmission to HUD or its designee. The payrolls less than the predetermined rate for the work they submitted shall set out accurately and completely performed when they are employed pursuant to and all of the information required to be maintained individually registered in a bona fide apprenticeship under subparagraph (c)(1) of this clause. This program registered with the U.S. Department of information may be submitted in any form desired. Labor, Employment and Training Administration, Optional Form WH-347 (Federal Stock Number Office of Apprenticeship and Training, Employer and 029-005-00014-1) is available for this purpose Labor Services (OATELS), or with a State and may be purchased from the Superintendent of Apprenticeship Agency recognized by OATELS, or if Documents, U.S. Government Printing Office, a person is employed in his or her first 90 days of Washington, D.C. 20402. The Contractor is probationary employment as an apprentice in such an responsible for the submission of copies of apprenticeship program, who is not individually payrolls by all subcontractors. (Approved by the registered in the program, but who has been certified Office of Management and Budget under OMB by OATELS or a State Apprenticeship Agency (where Control Number 1214-0149.) appropriate) to be eligible for probationary (ii) Each payroll submitted shall be accompanied by a employment as an apprentice. The allowable ratio of “Statement of Compliance,” signed by the apprentices to journeymen on the job site in any craft Contractor or subcontractor or his or her agent classification shall not be greater than the ratio who pays or supervises the payment of the permitted to the Contractor as to the entire work force persons employed under the contract and shall under the registered program. Any worker listed on a certify the following: payroll at an apprentice wage rate, who is not (A) That the payroll for the payroll period contains registered or otherwise employed as stated in this the information required to be maintained paragraph, shall be paid not less than the applicable under paragraph (c) (1) of this clause and that wage rate on the wage determination for the such information is correct and complete; classification of work actually performed. In addition, (B) That each laborer or mechanic (including each any apprentice performing work on the job site in helper, apprentice, and trainee) employed on excess of the ratio permitted under the registered the contract during the payroll period has been program shall be paid not less than the applicable paid the full weekly wages earned, without wage rate on the wage determination for the work rebate, either directly or indirectly, and that no actually performed. Where a contractor is performing deductions have been made either directly or construction on a project in a locality other than that in indirectly from the full wages earned, other which its program is registered, the ratios and wage than permissible deductions as set forth in 29 rates (expressed in percentages of the journeyman’s CFR Part 3; and hourly rate) specified in the Contractor’s or (C) That each laborer or mechanic has been paid subcontractor’s registered program shall be observed. not less than the applicable wage rates and Every apprentice must be paid at not less than the fringe benefits or cash equivalents for the rate specified in the registered program for the classification of work performed, as specified apprentice’s level of progress, expressed as a in the applicable wage determination percentage of the journeyman hourly rate specified in incorporated into the contract. the applicable wage determination. Apprentices shall (iii) The weekly submission of a properly executed be paid fringe benefits in accordance with the certification set forth on the reverse side of provisions of the apprenticeship program. If the Optional Form WH-347 shall satisfy the apprenticeship program does not specify fringe requirements for submission of the “Statement of benefits, apprentices must be paid the full amount of Compliance” required by subparagraph (c)(2)(ii) of fringe benefits listed on the wage determination for this clause. the applicable classification. If the Administrator of the (iv) The falsification of any of the above certifications Wage and Hour Division determines that a different may subject the Contractor or subcontractor to practice prevails for the applicable apprentice civil or criminal prosecution under Section 1001 of classification, fringes shall be paid in accordance with Title 18 and Section 3729 of Title 31 of the United that determination. In the event OATELS, or a State States Code. Apprenticeship Agency recognized by OATELS, (3) The Contractor or subcontractor shall make the withdraws approval of an apprenticeship program, the records required under subparagraph (c)(1) available Contractor will no longer be permitted to utilize for inspection, copying, or transcription by authorized apprentices at less than the applicable predetermined representatives of HUD or its designee, the rate for the work performed until an acceptable Contracting Officer, or the Department of Labor and program is approved. shall permit such representatives to interview (2) Trainees. Except as provided in 29 CFR 5.16, employees during working hours on the job. If the trainees will not be permitted to work at less than the Contractor or subcontractor fails to submit the predetermined rate for the work performed unless required records or to make them available, HUD or they are employed pursuant to and individually its designee may, after written notice to the registered in a program which has received prior Contractor, take such action as may be necessary to approval, evidenced by formal certification by the U.S. cause the suspension of any further payment, Department of Labor, Employment and Training advance, or guarantee of funds. Furthermore, failure Administration. The ratio of trainees to journeymen on to submit the required records upon request or to the job site shall not be greater than permitted under
Previous editions are obsolete Page 17 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485.3G the plan approved by the Employment and Training (2) No part of this contract shall be subcontracted to any Administration. Every trainee must be paid at not less person or firm ineligible for award of a United States than the rate specified in the approved program for Government contract by virtue of section 3(a) of the the trainee’s level of progress, expressed as a Davis-Bacon Act or 29 CFR 5.12(a)(1). percentage of the journeyman hourly rate specified in (3) The penalty for making false statements is prescribed the applicable wage determination. Trainees shall be in the U. S. Criminal Code, 18 U.S.C. 1001. paid fringe benefits in accordance with the provisions (j) Contract Work Hours and Safety Standards Act. As used of the trainee program. If the trainee program does in this paragraph, the terms “laborers” and “mechanics” not mention fringe benefits, trainees shall be paid the include watchmen and guards. full amount of fringe benefits listed in the wage (1) Overtime requirements. No contractor or determination unless the Administrator of the Wage subcontractor contracting for any part of the contract and Hour Division determines that there is an work which may require or involve the employment of apprenticeship program associated with the laborers or mechanics, including watchmen and corresponding journeyman wage rate in the wage guards, shall require or permit any such laborer or determination which provides for less than full fringe mechanic in any workweek in which the individual is benefits for apprentices. Any employee listed on the employed on such work to work in excess of 40 hours payroll at a trainee rate who is not registered and in such workweek unless such laborer or mechanic participating in a training plan approved by the receives compensation at a rate not less than one Employment and Training Administration shall be paid and one-half times the basic rate of pay for all hours not less than the applicable wage rate in the wage worked in excess of 40 hours in such workweek. determination for the classification of work actually (2) Violation; liability for unpaid wages; liquidated performed. In addition, any trainee performing work damages. In the event of any violation of the on the job site in excess of the ratio permitted under provisions set forth in subparagraph (j)(1) of this the registered program shall be paid not less than the clause, the Contractor and any subcontractor applicable wage rate in the wage determination for responsible therefor shall be liable for the unpaid the work actually performed. In the event the wages. In addition, such Contractor and Employment and Training Administration withdraws subcontractor shall be liable to the United States (in approval of a training program, the Contractor will no the case of work done under contract for the District longer be permitted to utilize trainees at less than the of Columbia or a territory, to such District or to such applicable predetermined rate for the work performed territory), for liquidated damages. Such liquidated until an acceptable program is approved. damages shall be computed with respect to each (3) Equal employment opportunity. The utilization of individual laborer or mechanic (including watchmen apprentices, trainees, and journeymen under this and guards) employed in violation of the provisions clause shall be in conformity with the equal set forth in subparagraph (j)(1) of this clause, in the employment opportunity requirements of Executive sum of $10 for each calendar day on which such Order 11246, as amended, and 29 CFR Part 30. individual was required or permitted to work in excess (e) Compliance with Copeland Act requirements. The of the standard workweek of 40 hours without Contractor shall comply with the requirements of 29 CFR payment of the overtime wages required by Part 3, which are hereby incorporated by reference in this provisions set forth in subparagraph (j)(1) of this contract. clause. (f) Contract termination; debarment. A breach of this contract (3) Withholding for unpaid wages and liquidated clause may be grounds for termination of the contract damages. HUD or its designee shall upon its own and for debarment as a Contractor and a subcontractor action or upon written request of an authorized as provided in 29 CFR 5.12. representative of the Department of Labor withhold or (g) Compliance with Davis-Bacon and related Act cause to be withheld, from any moneys payable on requirements. All rulings and interpretations of the Davis- account of work performed by the Contractor or Bacon and related Acts contained in 29 CFR Parts 1, 3, subcontractor under any such contract or any Federal and 5 are herein incorporated by reference in this contract with the same prime Contractor, or any other contract. Federally-assisted contract subject to the Contract (h) Disputes concerning labor standards. Disputes arising out Work Hours and Safety Standards Act, which is held of the labor standards provisions of this clause shall not by the same prime Contractor, such sums as may be be subject to the general disputes clause of this contract. determined to be necessary to satisfy any liabilities of Such disputes shall be resolved in accordance with the such Contractor or subcontractor for unpaid wages procedures of the Department of Labor set forth in 29 and liquidated damages as provided in the provisions CFR Parts 5, 6, and 7. Disputes within the meaning of set forth in subparagraph (j)(2) of this clause. this clause include disputes between the Contractor (or (k) Subcontracts. The Contractor or subcontractor shall insert any of its subcontractors) and the PHA, HUD, the U.S. in any subcontracts all the provisions contained in this Department of Labor, or the employees or their clause, and such other clauses as HUD or its designee representatives. may by appropriate instructions require, and also a (i) Certification of eligibility. clause requiring the subcontractors to include these (1) By entering into this contract, the Contractor certifies provisions in any lower tier subcontracts. The prime that neither it (nor he or she) nor any person or firm Contractor shall be responsible for the compliance by any who has an interest in the Contractor’s firm is a subcontractor or lower tier subcontractor with all these person or firm ineligible to be awarded contracts by provisions. the United States Government by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
Previous editions are obsolete Page 18 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485 3G 47. Non-Federal Prevailing Wage Rates
(a) Any prevailing wage rate (including basic hourly rate and any fringe benefits), determined under State or tribal law to be prevailing, with respect to any employee in any trade or position employed under the contract, is inapplicable to the contract and shall not be enforced against the Contractor or any subcontractor, with respect to employees engaged under the contract whenever such non-Federal prevailing wage rate exceeds: (1) The applicable wage rate determined by the Secretary of Labor pursuant to the Davis-Bacon Act (40 U.S.C. 3141 et seq.) to be prevailing in the locality with respect to such trade; (b) An applicable apprentice wage rate based thereon specified in an apprenticeship program registered with the U.S. Department of Labor (DOL) or a DOL- recognized State Apprenticeship Agency; or (c) An applicable trainee wage rate based thereon specified in a DOL-certified trainee program.
48. Procurement of Recovered Materials.
(a) In accordance with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, the Contractor shall procure items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition. The Contractor shall procure items designated in the EPA guidelines that contain the highest percentage of recovered materials practicable unless the Contractor determines that such items: (1) are not reasonably available in a reasonable period of time; (2) fail to meet reasonable performance standards, which shall be determined on the basis of the guidelines of the National Institute of Standards and Technology, if applicable to the item; or (3) are only available at an unreasonable price. (b) Paragraph (a) of this clause shall apply to items purchased under this contract where: (1) the Contractor purchases in excess of $10,000 of the item under this contract; or (2) during the preceding Federal fiscal year, the Contractor: (i) purchased any amount of the items for use under a contract that was funded with Federal appropriations and was with a Federal agency or a State agency or agency of a political subdivision of a State; and (ii) purchased a total of in excess of $10,000 of the item both under and outside that contract.
Previous editions are obsolete Page 19 of 19 form HUD-5370 (11/2006) Replaces form HUD-5370-A ref Handbooks 7417.1 & 7485 3G Tohono O’odham Ki:Ki Association Non - Collusive Affidavit Project: 606/
By submission of the bid for the Project known as: Project 606/, the bidder_______________________________________________certifies that:
1. This bid has been independently arrived at without collusion with any other bidder or with any competitor; 2. This bid has not been knowing disclosed and will not be knowingly disclosed, prior to the opening of bids for this project, to any other bidder, competitor or potential competitor; 3. No attempt has been, or will be made to induce any other person, partnership or corporation to submit or not to submit a bid or Proposal; 4. The person signing this affidavit certifies that he has fully informed himself regarding the accuracy of the statements contained in this certification, and under the penalties of perjury, affirms the truth thereof, such penalties applicable to the bidder as well as to the person signing in its behalf;
________________________________ Signature of Bidder
STATE OF ARIZONA
COUNTY OF _______________________________)
On this _____________ day of ________________________, in the year 20__ before me, the undersigned Notary Public in and for said state personally appeared _______________________________ personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s), who name(s) is(are) subscribed to the written instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public Received 11/17/2023 ROC Legal
License ROC 258378, ROC 323162
November 17, 2023
Registrar of Contractors VIA Email: [email redacted] State of Arizona 1700 W. Washington Street, Suite 105 Phoenix, AZ 85007-2812
ANSWER TO CITATION RE: Case # 2023-11431 Dear Sirs:
ABCO Solar Inc. hereby submits its answer to the above cited case in writing in response to the Complaint filed by Mr. Thomas Shepherd on behalf of Tohono O’odham Ki:Ki Association Toka Housing for the project located at San Xavier Black Mountain Community, Tucson AZ 85746. ABCO is not represented by Counsel in this matter.
ABCO Entered into a contract with Tohono O’odham on June 27, 2023, and received a payment of $21,757.12 as per that contract. ABCO Solar has not performed on that contract nor has ABCO purchased the equipment to perform.
ABCO is unable at this time to purchase the equipment or to return the funds to the Owner. We have performed on larger projects similar to this one for this owner and have had no complaints. This is a repeat of the earlier contract and ABCO had every intent to complete this contract as well.
We recently were cheated out of a large account receivable and lost nearly $100,000. This loss of capital made our performance impossible at the time the Owner terminated the contract, and we were unable to return the funds because we have no capital. We have had extreme hardship since the loss of sales during covid and the resulting debt. We are still in this financial hardship.
When we are able to purchase the equipment in the future we will do so. We are willing to enter into a mediation agreement and have included the request herein. If we are able to refinance our building or equipment to raise funds to acquire the lights, we will install them and complete the contract. Let us know if you have more questions. Very truly yours,
David Shorey, President
2505 N Alvernon Way, Tucson, Arizona 85712 Phone 520-777-0511 Website www.abcosolar.com Received 11/17/2023 ROC Legal Received 11/17/2023 ROC Legal Received 11/20/23, 8:25 AM State of Arizona Mail - ABCO Answer to case 2023-11431 11/17/2023 ROC Legal
Answers - AZROC <[email redacted]>
ABCO Answer to case 2023-11431 message
David Shorey <[email redacted]> Fri, Nov 17, 2023 at 3:40 PM To: [email redacted] Cc: [email redacted], [email redacted], [email redacted]
Dear Sir
ABCO has prepared and enclosed the Company answer to the complaint in case #2023-11431. We have also prepared and attached the Joint request for Mediation filled out for ABCO only. Please let me know if there are any other item necessary and inform us of the hearing.
David Shorey, President ABCO Solar, Inc. 2505 N Alvernon Way Tucson, AZ 85712 Phone 520-777-0511
attachments Request for joint mediation 11-17-23.pdf 339K ABCO ROC Correspondence.pdf 136K
https://mail.google.com/mail/b/AEoRXRTrIQH5T-BIHuORD45LrnyaE8-I-fuXFJJ9uJ0KzVKUBYdk/u/0/?ik=581c53cf5c&view=pt&search=all&permthid=… 1/1 Mediation Notice
Mediation Services Mediation services are available to the parties. What is Mediation? Mediation is a method of resolving disputes where the parties can end conflict without the expense and time associated with the full administrative process. Who Participates in During mediation, a mediator will attempt to help the Mediation? parties find an optimal solution to the conflict. Both parties must agree to participate in mediation, and both parties must bring a representative to mediation that has full authority to settle the entire matter. Mediation Is Not Neither the Registrar nor the Office of Administrative Mandatory Hearings will penalize a party for not agreeing to mediation. Where do the Parties The parties will meet at the Office of Administrative Meet for Mediation? Hearings to participate in mediation.
The Office of Administrative Hearings is located at 1400 West Washington, Suite 101, Phoenix, Arizona 85007. When does Mediation can occur after the Registrar issues a citation, but Mediation Occur? before the administrative hearing. Why Should Parties Mediation can be an alternative to the full administrative Consider Mediation? process. Mediation is beneficial because it is (1) time- efficient, (2) cost-effective, (3) confidential, and (4) capable of providing flexible solutions to complex problems. How to Request If the parties wish to mediate this case, they must file a Joint Mediation Request for Mediation with the Office of Administrative Hearings. A Joint Request for Mediation is included with this Mediation Notice. REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA _________________________ Case No. _______________ COMPLAINANT,
v. JOINT REQUEST FOR MEDIATION _________________________ RESPONDENT.
REQUEST
The parties jointly request that this matter be referred to mediation in the Office of Administrative Hearings (OAH). ☐ This matter is set for hearing on __________________(date). ☐ This matter is not currently set for hearing. MEDIATION AGREEMENT By requesting this mediation and signing below, the parties understand, represent, and agree: 1. The parties are prepared to commence mediation and will be ready for mediation on _____________________(date); 2. The parties will participate in the mediation process in good faith; 3. This request for mediation is not intended to hinder or delay administrative proceedings; 4. No party will contend that the mediation limits the power of OAH and its administrative law judges to conduct an administrative hearing and issue decisions under A.R.S. §§ 41-1092 – 1092.12; 5. The parties will be courteous and respectful throughout the mediation process to all participants; 6. The mediation is completely voluntary and the principal purpose is to allow the parties a full and fair opportunity to discuss settlement; of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 7. The mediator may conduct joint and separate meetings with the parties and may suggest resolutions to the parties’ dispute, but the mediator has no authority to impose a settlement upon the parties; 8. The mediation process is confidential. Communications made, material created for or used during, and acts occurring during mediation are confidential and may not be discovered or admitted into evidence in any proceeding except as provided by A.R.S. § 12-2238; 9. The mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation except as provided in A.R.S. § 12-2238(C); 10. Neither the mediator, nor the Registrar of Contractors, nor the Office of Administrative Hearings is subject to civil liability for any act or omission in connection with any mediation service or activity except for acts involving
intentional misconduct or reckless disregard of a substantial risk of injury to the rights of others; 11. Throughout the mediation process, each party must have a representative present who will have full settlement authority to settle all claims at issue in the administrative
proceeding. 12. The mediation process will terminate when: a. The parties reach settlement; b. The mediator determines that further efforts at mediation are no longer likely
to achieve a settlement; or c. One of the parties withdraws from mediation. _____________________________________ _______________________ Complainant (or representative) Date
_____________________________________ _______________________ Respondent (or representative) Date
of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 PREHEARING DISCLOSURE STATEMENT INSTRUCTIONS ***DO NOT SUBMIT THESE INSTRUCTIONS WITH THE PREHEARING DISCLOSURE FORM***
ADMINISTRATIVE RULES A copy of the Arizona Administrative Code’s Rules for the Registrar of Contractors can be located on the Registrar’s Website.
PREHEARING DISCLOSURE REQUIREMENT Under A.A.C. R4-9-118(A), before a hearing, the parties must prepare a disclosure statement. The disclosure statement must contain: • A list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony; and • A list of all the exhibits that the party will use at the hearing.
FILE PREHEARING DISCLOSURE STATEMENTS • The Prehearing Disclosure Statements and Exhibits may be submitted to the Arizona Office of Administrative Hearings using any of the following: • Electronically: https://portal.azoah.com/submission/ • In-Person or by Mail: 1740 West Adams Street, Lower Level, Phoenix, Arizona 85007
EXCHANGING DISCLOSURE STATEMENTS AND EXHIBITS Under A.A.C. R4-9-118(B) (effective November 5, 2017), a party to the hearing must serve on every other party and file with the Office of Administrative Hearings a copy of: • The disclosure statement; and, • Any exhibit that the party will use at the hearing. Service: The disclosure statement and exhibits must be served on all parties in accordance with Arizona Administrative Code R2-19-108 Filing Documents. Under A.A.C. R2-19-108, service is completed by: • Personal delivery; • 1st class, certified or express mail; or • Facsimile. Timing: The disclosure statement and the exhibits must be served and filed not less than seven calendar days before the date of the hearing. Under A.A.C. R2-19-108, a document is served on a party: • On the date it is personally served; • Five days after it is mailed by express or 1st class mail; • On the date of the return receipt if it is mailed by certified mail; or • On the date indicated on the facsimile transmission.
CONSEQUENCES FOR FAILING TO DISCLOSE Under A.A.C. R4-9-108(C), if a witness or an exhibit is not timely disclosed as required the rules, and good cause for the failure to disclose is not shown, then the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.
Form RC-L-800A Prehearing Disclosure Statement Rev. 10/08/2019 Instructions Form PREHEARING DISCLOSURE STATEMENT FORM RC-L-800A
PART 1: WITNESS LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony. If you need additional space to list all witnesses, complete and attach additional Witness Lists. Example 1. Name 2. Telephone Number 3. Email Address
John Doe (123) 456-7890 [email redacted] 4. Subject Matter of Expected Testimony
John Doe will testify regarding the poor workmanship and poor installation of the Garage Door. Mr. Doe will also testify regarding the invoices and change orders for the project.
Witness 1. Name 2. Telephone Number 3. Email Address
4. Subject Matter of Expected Testimony
Witness 1. Name 2. Telephone Number 3. Email Address
4. Subject Matter of Expected Testimony
Witness 1. Name 2. Telephone Number 3. Email Address
4. Subject Matter of Expected Testimony
Witness 1. Name 2. Telephone Number 3. Email Address
4. Subject Matter of Expected Testimony
Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 1 of 3 PART 2: EXHIBIT LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the exhibits that the party will use at the hearing. Note: All exhibits listed below must be provided to all parties to the hearing. See A.A.C. R4-9-118(B). If you need additional space to list all witnesses, complete and attach additional Exhibit Lists. Example Contract for new garage door. Invoice #10001 – Cost for garage door replacement.
Exhibit Exhibit Name
Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 2 of 3 PART 3: ACKNOWLEDGEMENT & SIGNATURE I certify that the above information is true and correct and that I will serve a copy of this disclosure statement and any exhibits listed in Part 2 to all parties to the hearing in accordance with A.A.C. R4-9-118. I acknowledge and understand that if I fail to properly disclose a witness or exhibit, the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.
I am the (check one): Complainant Respondent Docket No.
Print Name Signature Date
Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 3 of 3