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,r 490Q2 RUIES AND REGULATIONS
<br />cerilflcd mall. return recdpt rcouested) of withhold up to ten (10) percent o! the vou-
<br />lntent to ttnnlnatt. and (]> an opportunity ehered amount until uttslactory completion
<br />tor,eonauluUon with Lhe ten~nlnating DAY by the engUxcr of wort and servlcu within
<br />before termination.
<br />le) If the owner tenntnatea for default, an
<br />epuftable sd)uatment !n the price provided
<br />for to thL agreement shall be made, but (1)
<br />no nmotmt shall be allowed for antlclpated
<br />profit on unperformed services or other
<br />work, and (4) any payment due to the engl-
<br />netr ai the time of termination maY be ad-
<br />Juat.ed to the extent of any additional coat
<br />the owner incurs because of the engineer's
<br />default. 1f the engineer tenminat,es for do-
<br />fault or u the owner terminates for aonven•
<br />fence, the epuftable adiustment shat 1n-
<br />elude a reasonable profit for servloes or
<br />other work performed. The epultable ad-
<br />~ustment !or any termination shah Drvvlde
<br />!or payment to Lhc engineer for serviw
<br />rendered and expenses incurred before the
<br />termination, 1n addition to urminatlon set
<br />Dement cost the engineer reasonably
<br />incurs relating to oomraitments which had
<br />become ltrra before the unainatlon
<br />(d) Upon teceiDt of • termination adton
<br />under paragraphs (a) or (b) above. the engl-
<br />Weer shall (1) promDtlY discontinue all ser-
<br />vice affected (unless the notice directs oth-
<br />erwise), and (4) deliver or otherwise make
<br />available to the owner all data, drawings,
<br />spectflotlons, reports. eatlmates, aummar-
<br />les, and such other infonmation and materi-
<br />al vthe engineer maY have aoCUmulated
<br />in perfonaing this agreement, whether com-
<br />pleted or in process.
<br />(e) Upon 1trminaUon under paragraphs
<br />(a) or (b) above, the owner maY take over
<br />the work and prosecute the same to eomple-
<br />Uon Dy agreement with another party or
<br />otherwise. Any work the owner takes over
<br />for completion -will be completed at the
<br />owner's risk, and the owner will hold harm-
<br />less the engineer from all claims and dam-
<br />agea arising out of improper use of the engi-
<br />neer's work.
<br />(f) If, alter termination for failure of the
<br />engineer to fulfill contractual obligations, it
<br />1s determined that the engineer had not ao
<br />failed, the termination shall be deemed to
<br />have been effected for the convenience of
<br />the owner. In such event, adluatment of the
<br />price provided for in th4 agreement:hall be
<br />made u paragraph (c) of thL+ clause pro-
<br />vide:.
<br />a. axsQatss
<br />Except as thin agreement otherwise pro-
<br />wider, all claims. counter-claims. dJaPUtea,
<br />and other matters !n Question Detweea the
<br />owner and the engineer arking out of or re•
<br />liting to this agmment or the breach of it
<br />will be de~clded by arbltratloa U the parties
<br />hereto mutually agree, or in a court of com-
<br />petent ~urisdietlon wlthia the. State to
<br />whkh the owner L ]Doted.
<br />s. raYrmrs
<br />(a) Payment shall be made in accordance
<br />with the payment schedule incorporated In
<br />this agreement u soon as praeiloble upon
<br />subml+slon of statements repuestlns PaY•
<br />went Dy the engineer to the owner. u no
<br />such payment schedule 1a ineorporat.ed >n
<br />this agreement, the payment provialons of
<br />DaragraDh tb) of this clause ahav a~~ly~
<br />(D) The enginetr may repuest monthly
<br />progress payment and the owner shall
<br />make them sa noon as prwcUoble upon sub-
<br />miufon of statements repuesiing payment
<br />by the er-tineer to the owner. Whey such
<br />progress psymenL are made, the owner may
<br />a step called for under this agreement.
<br />When the owner deurminrs that the work
<br />under LhL agreement or any specified Laalc
<br />hereunder V subatantlally complete and
<br />that the amount of retained peranlagea >a
<br />in excess of the amount cDruJdered by him
<br />to be adepuate for hh prot.ectSon, he shall
<br />release to the enxineer such excess amount.
<br />(e> No payment repuest made under para•
<br />graph (a> or (D> of thh dsuae shall exceed
<br />the estimated amount and value of the work
<br />and services performed DY the engineer
<br />under thL agreement The engineer shall
<br />prepare the estimates of work performed
<br />and shall supplement them with such sup-
<br />porting data as the owner may redulre.
<br />(d) Dpon aatlsfacWry completion of the
<br />work performed under this agreement, as a
<br />oondltlon prettdent to final payment under
<br />this agmment or to settlement upon tenal-
<br />natlon of the agreement the engineer shall
<br />execute and deliver to the owner • release
<br />of all daims against the owner arlcirtt under
<br />or by virtue of this agreement. other than
<br />such claims, u anY. as may be ^Dalflcally
<br />exempted by the engineer from the oper-
<br />ation of the release in stated amounts to be
<br />set forth therein
<br />a. rao.rxcz arstcx
<br />(a) In the performance of this a.grrement,
<br />the engineer shall, to the extent practicable,
<br />provide for maximum use of atructutea, ma-
<br />ehinea, products. materials, construWon
<br />methods, and eduipment which are readily
<br />available through eompetltive procurement,
<br />or through standard or proven production
<br />technfQuea, methods, and processes, eon;lat.
<br />ent with 40 CFR 35.936-3-and 55.936-13 in
<br />effect on the date of execution of thin agrM
<br />went, except to the extent to which lnnova-
<br />tlve technology may be used under 40 CFR
<br />35.908 1n effect on the date of execution of
<br />this agreement.
<br />(b) The engineer :hall not, In the perform-
<br />ance of the work under this agreement, pro-
<br />duce a design or apeciflotion which would
<br />repulre the use o! atructurea, machines,
<br />products, materials, conatructJoa methods,
<br />epufpment, or procesus which the engineer
<br />mows to be ava!]aDle only from a sole
<br />soura, railcar the engineer has adeduately
<br />~ustifled the use of a so)e source in writing.
<br />(c) The engineer shall not, is the perform-
<br />ance of the work under thL agreement, pro-
<br />duce a duign or apeciflotlon which would
<br />be restrictive in vloLtlon of sec. 404(:X6) of
<br />the Clean Water Act This atatuk reQUires
<br />that ao spectf)otlon for bldg or statement
<br />of work shall be written In such a m'^^er as
<br />to contain proprietary, ezdualorraTy, or ~s-
<br />crlminatory reVulrements other than those
<br />based upon ,performance, unless such re-
<br />Qulrementi are neceswy to test or dcmoa-
<br />strate a sper~fle thing, or to provide for neo-
<br />essary intencbangeabillty of parts and
<br />eQUlpment, or at least two brand names or
<br />trade name of oomDarable Quality or utLLty
<br />are ltTted and ax folloced by the words "or
<br />epual." With regard to malerlala, u a single
<br />material L apeclfied, the engineer must be
<br />prepared to substantiate the bast for the
<br />selection of the materfaL
<br />td) The engineer shall report to the owaet
<br />say sole-source or restrictive design or sped-
<br />11otJon giving the reason or reaaoru why it
<br />L necessary to restrict the design or rpectfl•
<br />otloa.
<br />le) The engineer s)-all not knowingiY
<br />specify or approve the performance of work
<br />at a fat111tY which Ia 1n vlolatlon of clran air
<br />or water standards and which is ]tried by
<br />the Director of the EPA Office of Federal
<br />ActlvlUn under 40 CFR Part IS.
<br />s. •vnrr, aorrss ro axcoxaa
<br />(a) The ensineer shall maintain hooka,
<br />records, documents, and other evidence dl-
<br />rntly pertinent to performance on EPA
<br />grant work under this agreement in aooord•
<br />anoe with generally accepted a(xounting
<br />PrinclDles and" Draeticea comlatently ap-
<br />plied, and 40 CFR 30.605, 30.805: and 3S.93S-
<br />7 In effect on the date of execution of thL
<br />asreement • The engineer shall also maln-
<br />Laln the flnanelal information and data used
<br />by the engineer in the prcDaratJon or wp-
<br />port of the cost aubmtsslon repuired under
<br />40 CFR 35.937~(b) !n effect on the date of
<br />execution of thL agreement and s copy of
<br />the coat summary submitted to the owner.
<br />The D.S. Environmental Protection Agency,
<br />the Comptroller General of the United
<br />Staten, the II.S. Department of Labor,
<br />owner, and [the State water pollution con-
<br />trol agency] or any of their duly authorized
<br />representatives shall .have access to such
<br />hooka, records, documents, and other evi•
<br />deace !or inspection, audit, and copying.
<br />The engineer will provide proper lacllltles
<br />for such access and Inspection
<br />(b) The engineer agrees to include para-
<br />tiraphs tai through (e) of this clause In all
<br />his contracts and all tier eubcontratta d1-
<br />rect),y related to project performance that
<br />are in excess of 110,000.
<br />(c) Audits conducted under this provision
<br />shall be in accordance with gener-allY ac-
<br />cepted auditing standards and eaLbllahed
<br />procedures sad guidelines of the reviewlrtg
<br />or audit ageacytles).
<br />(d) The engineer agrees to the disclosure
<br />of all information and reports resultlrtg
<br />from access to recorcL under paragraphs (a)
<br />and (b) of this clause, to any of the agencies
<br />referred Lo In paragraph tai, Provided Lhat
<br />the engineer L afforded the opportunity for
<br />an audit exit conference and as opportunity
<br />to comment sad aubm~t any supportng dos
<br />umentatioa on the pertinent porttoas of the
<br />draft audit report and that the fine] audit
<br />report will include written oommeaL of rea-
<br />sonaDle length, it any. of the engineer.
<br />le> The engineer shall maintain and make
<br />available records under paragraphs (a) and
<br />(b) of this clause during performance on
<br />EPA grant work under thL agreement and
<br />untll 3 years from the date of Slru) EPA
<br />grant payment for the protect. In s.dditlon,
<br />those records which n:late to any "Dispute"
<br />aDD~ under as EPA gent agreement. to
<br />litigation, .to the settlement of darns arls-
<br />ini out of such performance, or to coats or
<br />Items to which an audit exception has bees
<br />taken, shall be maintained and made availa-
<br />ble uatll 3 years after ttre date of resolution
<br />of such appeal, lltlgatton, claim, or excep•
<br />iron.
<br />to, rrucz armvcrroa rox asrrcrrvc cocT oa
<br />rt<rcrr~a ants
<br />(sat, efause s, apptteable lithe arnourrt N
<br />this opr+eesnent esceeds 1100,000.)
<br />la) 7S the owner or EPA determines that
<br />arty Drloe, indudltr; Droflt, negotiated la
<br />oannecttoa Frith thin agreement or arty cost
<br />reimbursable under thL ssmment sas la•
<br />creased b7 say aigntfiearrt sums because the
<br />engtaeer or say subcontractor furnished fa-
<br />oomp)ete ~or inaccurate cost. or pridag data
<br />trEDfttAL ttE4tSTE1<, VOL V, HlO. iii-WFDNESOAY, SIifTEJdBft 27, IyTB
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