|
- :402 :[jLES ~hl~ REGULATPO~c=. .,.
<br />r_rtified mail. return receipt requested) of
<br />intent to terrilnate. and (2) an opportunity
<br />Sar consultation with the terminattng party
<br />.~ before termination.
<br />(c) If the oc-ner terminates for default, an
<br />equitable adjustment in the price provided
<br />for !a thh agreement shall be made, but (1)
<br />no amour shall be allowed for anticipated
<br />profit on unperformed services or other
<br />work, and /2) any payment due to the engi-
<br />neer at the time of termination may be ad-
<br />plated to the extent of any addlUonal costa
<br />the owner pleura because of the engineer's
<br />default. If the engineer terminates for de-
<br />fault or !i the owner terminates for conven-
<br />iencQ Lhe equitable adjustment shall in-
<br />clude areasonable profit for services or
<br />other wort performed. The equitable ad-
<br />justment far say termination shall provide
<br />fat payment to the engineer for services
<br />rendered and expenses Incurred before the
<br />terminatlotl, >a addition to termination set-
<br />tlement ooata the engineer reasonably
<br />incurs relating to commltmenta which had
<br />become firm before the termination.
<br />(d) IIpoa receipt of a termination action
<br />under paragraphs la) or lb) above, the engi-
<br />neer sha10 f1) promptly discontinue all aer-
<br />vteea affected (unless the notice directs oth-
<br />- erwlae), and (2) deliver or otherwise make
<br />avaiLDle to the owner all data, drawings,
<br />apeelfk;atiasu, reports, estimates, summar-
<br />ies. and wch other information and materl-
<br />ab ss the engineer may have accumulated
<br />!n performing this agreement, whether com-
<br />pleted or to process.
<br />(e) IIpora termination under paragraphs
<br />(a) or (b) above, Che owner may take over
<br />the work and prosecute the same to comple-
<br />tion by agreement with another party or
<br />otherwise. Any work the owner takes over
<br />for completionwill be completed at Lhe
<br />owner's risk, and the owner will hold harm-
<br />less the engineer from all claims and dam-
<br />ages arfsiag out of improper use of the engi-
<br />neeYs work-
<br />(f) If, otter termination for failure of the
<br />erltineer to fulllll contractual obligations, ft
<br />1s determined that the engineer had not so
<br />failed, the Lerminatlon shall be deemed to
<br />have bees effected for the convenience of
<br />the owner. In such event, adjuat.ment of the
<br />price Drovided for 1n this agreement shall be
<br />made as paragraph (c) of this clause pro-
<br />vtdes.
<br />6. An®Ir~
<br />Except as this agreement otherwise pro-
<br />video, ill claims, counter-claims. disputes,
<br />and other matters in question between the
<br />owner and the etgineer arising out of or re-
<br />lating Lo this agreement or the breach o1 it
<br />a•QI be derided by arbitration tf the parties
<br />hereto mutually agree, or in s court of com-
<br />petent jurisdiction within the State >n
<br />which the owner fa located.
<br />T. PAY']¢1P2
<br />(a) Payment shall be made in accordance
<br />with the payment schedule incorporated in
<br />this agreement as soon sa practicable upon
<br />submission of statements requesting pay-
<br />ment by the engineer to the owner. If no
<br />such payment schedule is incorporated in
<br />this agreement, the payment provisions of
<br />Dangraph (b) of this clause shall apply.
<br />(b) The engineer may request monthly
<br />progress payments and the owner shall
<br />make them ss soon as practicable upon sub•
<br />mission of statements requesting payment
<br />by Lhe engineer to the owner. When ouch
<br />progress payments are made, the owTler may
<br />withhold up to ten l10) percent of the vou-
<br />chered amount untll astlsfactory completion
<br />by Lhe engineer -of work and services within
<br />s atop called for under this agreement.
<br />When the owner determines that the work
<br />under this agreement or any specified task
<br />hereunder 1a aubstantlally complete and
<br />that the amount of retained percentages is
<br />m excess of the amount considered by him
<br />to be adequate for his protection, he shall
<br />release to the engineer such excess amount.
<br />(c) No payment request made under para-
<br />graph (s) or (b) of this clause srlall exceed
<br />the estimated amount and value of the work
<br />and services performed by the engineer
<br />under this agreement. The engineer shall
<br />Drepare the estimates of work performed
<br />and shall supplement them with such sup-
<br />porting dal g, the owner may require. -
<br />(d) IIpon aatlsfactory completion of the
<br />work performed under this agreement, sa a
<br />condition precedent to final payment under
<br />this agreement or to settlement upon termi-
<br />nation of Lhe agreement, the engineer shall
<br />execute and deliver to the owner a release
<br />of all claims against the owner arising under
<br />or by virtue of this agreement, other than
<br />such c)aima, if anY. as may be apeeifically
<br />exempted by the engineer from the oper-
<br />ation of the release in stated amounts to be
<br />set forth therein.
<br />•. PAOJLCS DESIGN
<br />(a) >n the performance of this agreemeht,
<br />the engineer shall, to the extent practicable,
<br />provide for maximum use of structures, ma-
<br />chines, products, materials, construction
<br />methods, and equipment which are readily
<br />avallable through competitive procurement,
<br />or through standard or proven production
<br />techniques, methods, and processes, ConsLst-
<br />ent.with 40 CFR 35.938-3 and 35.938-13 in
<br />effect on the date of execution of this agree-
<br />ment, except to the extent to which innova-
<br />tive technology may be used under !0 CFIi
<br />35.908 in effect on the date of execution of
<br />this agreement.
<br />(b) The engineer shall not, !n the perform-
<br />ance of the work under this agreement, pro-
<br />duce s design or specification which would
<br />require the use of structures, machines,
<br />products, materials, construction methods,
<br />equipment, or processes which the engineer
<br />knows to be available only from a sole
<br />source, unless the engineer has adequately
<br />justified the use of a sole source !n writing.
<br />(c) The engineer shall not, in the perform-
<br />ance of the work under this agreement, pro-
<br />duce a design or specification which would
<br />be restrictive in violation of sec. ZO!(aX8) of
<br />the Clean Water Act. This statute requires
<br />that no specification for bids or statement
<br />of work shall be written in such a manner as
<br />to contain proprietary, exclusionary, or ais-
<br />criralnatory requirements other than those
<br />based upon ,performance, unless such re-
<br />quirements ere necessary to test or demon-
<br />strate aspecific thing, or to provide for nec-
<br />e~'y interchanBeablllty of parts and
<br />equipment, or at least two brand names or
<br />trade names of comparable quality or utility
<br />are listed and are followed by the words "or
<br />equal." Wlth regard to materials, if s single
<br />material is specified, the engineer moat be
<br />Prepared to substantiate the basis for the
<br />selection of the material
<br />(d) The engineer shall report to the owner
<br />any sole-source or restrictive design or specl-
<br />fieation giving the reason or reasons why it
<br />fa necessary to restrict the design oz apeclfi-
<br />cation.
<br />(e) The engineer shall not knowingly
<br />specify or approve the performance of work
<br />at a f.eiifty which >a to violation of dean air
<br />or water standards and which is listed by
<br />Lhe Director of the EPA Office of Federal
<br />Activities under !0 t:F'Fi Part 15.
<br />f. AIIDrI; ACCTSS TO RECORDS
<br />la) The engineer shall maintain books,
<br />records, documents, and other evidence di-
<br />rectly pertinent t0 performance on EPA
<br />grant work undez this agreement in accord-
<br />ance with generally accepted accounting
<br />Principles and practices consistently ap-
<br />plied, and 40 CFR 30.805, 30.SOS; and 35.935-
<br />7 in effect on the date of execution of this
<br />agreement. • The engineer shall also main-
<br />tain the firlanclal information and data used
<br />by the engineer in the preparation or sup-
<br />port of the coat submission required under
<br />40 CFR 35.937-8(b) to effect on the date of
<br />execution of this agreement and a copy of
<br />the cost summary submitted to the owner.
<br />The II.S. Environmental Protection Agency,
<br />the Comptroller Creneral of the United
<br />States, the II.S. Department of Labor,
<br />owner, and [the State water pollution con-
<br />trol agencyl or any of their duly authorized
<br />representattvea shall have access t0 such
<br />books, records, documents, and other evi-
<br />dence for inspection, audit, and copying.
<br />The engineer will provide proper facilities
<br />for such accev and 11upectlon.
<br />(b) The engineer agrees to include para-
<br />graphs (a) through (e) of thi4 clause in all
<br />his contracts and all tier subcontracts di-
<br />rectly related to project performance that
<br />are in excess of 110,000.
<br />(c) Audits conducted under Chia provision
<br />shall be in accordance with generally ac-
<br />cepted auditing standards and established
<br />procedures and guidelines of the reviewing
<br />or audit agencyges).
<br /><d) The engineer agrees to the disclosure
<br />of all information and reports resulting
<br />from access to records under paragraphs (a)
<br />and (b) of this clause, to any of the agencies
<br />referred to in paragraph (a), provided that
<br />the engineer fa afforded the opportunity for
<br />an audit exit conference and an opportunity
<br />to comment and submit any aupporth2g doc-
<br />umentation on the pertinent portions of the
<br />draft audit report and that the final audit
<br />report will include written comments of rea-
<br />sonable length, !f any, of the engineer.
<br />(e) The engineer shall maintain and make
<br />available records under paragraphs <a) and
<br />(b) of this clause durltlg performance on
<br />EPA grant work under this agreement and
<br />untll 3 years from the date of final EPA
<br />grant payment for the project. In addition,
<br />Lhose records which relate Lo any "Dispute"
<br />appeal under an EPA grant agreement, to
<br />litigation, .to the settlement o1 claims aria.
<br />mg out of such performance, or to costa or
<br />items to which an audit exceptior. has been
<br />taken, shall be maintained and made availa-
<br />ble until 3 years after the date of resolution
<br />of such appeal, litigation, claim, or excep-
<br />tion.
<br />10. PRICE ALDDCTIOIr TOR DZTLCrrvy COST OR
<br />PRICING DATA
<br />(This clause is apyf(cablt ~ the amount q1
<br />th{s a0r'eeTnt•nt tscetds t100,000.)
<br />(s> If the owner or EPA determines that
<br />aIL9 Drice, including profit, negotiated in
<br />connection with this agreement or any cost
<br />reimbursable under this agreement was in-
<br />creased by any significant soma because the
<br />engineer or any subcontractor furnished in-
<br />complete ~oz inaccurate cost. or pricing data
<br />!'EDERAL REGISTER, VOL q, !!O, jig-WEDNESDAY, SEy'TEA{t3ER 27, }yn
<br />
|