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HomeMy WebLinkAboutContract #: 1942 - From: 01-20-2026 To: 05-31-2026 - Thomas E Snowden, Inc. - Town Manager CONTRACT NO. VENDOR NO. 26334 BUILDING CONSTRUCTION CONTRACT WITH THE TOWN OF NORTH ANDOVER THIS CONTRACT made and entered into this 4tnday of January, 2026, by and between Thomas E. Snowden,Inc., a domestic profit corporation duly authorized by law and having a principal place of business at 177 North Main Street, Middleton, Massachusetts 01949, hereinafter called "CONTRACTOR", and the TOWN of North Andover, ("TOWN") a municipal corporation duly established by law and located at 120 Main Street, North Andover, in Essex County, Commonwealth of Massachusetts. WHEREAS, the TOWN issued its Invitation for Bids dated November 4, 2025 for HVAC replacement at 12OR Main Street; and WHEREAS, the CONTRACTOR represents that it is duly qualified in this field, and has agreed to perform such services for the TOWN, when requested by the Department Head or his designee; and WHEREAS,the TOWN has accepted the CONTRACTOR'S offer. NOW,THEREFORE, IT IS AGREED by and between the Parties as follows: -I- The CONTRACTOR agrees that it will furnish all the necessary equipment, materials, and labor required to install new HVAC system at 120R Main Street, in strict accordance with the Specifications, as directed by the Department Head, during the period commencing upon execution and terminating May 31, 2026, and will perform such work in a good workmanlike manner.Time is of the essence for this Contract. Any extensions of time must be in writing and are at the sole discretion of the TOWN. -2- The Invitation for Bid,the Specifications,the Bid,Bid Deposit, Payment Bond,Performance Bond, all required Certifications, all Insurance Binders, and the Schedule of Minimum Wage Rates, as established by the Director of the Department of Labor Standards in the Executive Office of Labor and Workforce Development, are incorporated herein and made a part of this CONTRACT. -3- i Total payments under this CONTRACT shall not exceed One Million Forty Thousand and 00/100 ($1,040,000.00) DOLLARS. This Contract is expressly subject to and contingent upon an appropriation of funds. -4- The TOWN agrees to use best efforts to pay for services within thirty (30) days of receiving an invoice,so long as all services provided are sufficiently detailed in the invoice,and that the invoice has filed with the contracting department.Any payment under this Contract shall not constitute or be deemed a waiver, relinquishment, release,or abandonment of any claim which the TOWN may have against the CONTRACTOR for breach of this Contract. -5- The CONTRACTOR agrees that no obligation shall be considered to have incurred under this CONTRACT unless and until a purchase order shall have been duly issued and approved. And further, that the obligation incurred shall be limited to the amount set forth in purchase order or purchase orders duly issued and approved. -6- The TOWN, in consideration of the above CONTRACTS on the part of the CONTRACTOR to be performed, agrees to pay to the CONTRACTOR the price set forth in Paragraph No. 3 for all work performed and the necessary equipment, tools, appliances and materials furnished hereunder. The TOWN agrees to use best efforts to pay for services within thirty (30) days of receiving an invoice,so long as all services provided are sufficiently detailed in the invoice, and that the invoice has filed with the contracting department.Any payment under this Contract shall not constitute or be deemed a waiver, relinquishment, release,or abandonment of any claim which the TOWN may have against the CONTRACTOR for breach of this Contract. -7- The work to be done under this CONTRACT, including all the necessary labor, equipment, tools, appliances and materials in connection therewith must, in all respects, notwithstanding any provision herein to the contrary or inconsistent therewith, meet with the approval of the contracting Department Head. The CONTRACTOR states that it is qualified, and is in all relevant aspects, in good standing. The CONTRACTOR certifies that performance under this Contract will meet ethical business standards and good stewardship of taxpayer and public funding to prevent waste or abuse. -8- No laborer, workman or mechanic, working within the Commonwealth, in the employ of the CONTRACTOR, or any subcontractor authorized under this CONTRACT shall, in connection with the work to be done under this CONTRACT, be required or requested to work more than eight (8) hours in any one (1) calendar day, or more than forty-eight (48) hours in any one (1) week, except in cases of extraordinary emergency, unless otherwise provided by law. -9- The CONTRACTOR shall at all times during the Contract maintain in full force and effect Employer's Liability, Worker's Compensation (MGL c.152), Public Liability, and Property Damage Insurance, including contractual liability coverage. All insurance shall be for policy limits acceptable to the TOWN; all required insurance shall be certified by a duly authorized representative of the insurers on the "MIIA" or "ACORD" Certificate of Insurance form (incorporated into and made a part of this agreement); and before commencement of work hereunder the CONTRACTOR agrees to furnish the TOWN with certificate(s)of insurance or other evidence satisfactory to the TOWN. The certificates shall contain the following express obligations: "In the event of cancellation or material change in a policy affecting the certificate holder,thirty (30) days prior written notice will be given the certificate holder. Where notice is not provided by CONTRACTOR's insurer, the notice will be provided by the CONTRACTOR." The TOWN shall be named as an additional insured under each policy or policies, except Workers' Compensation. For the purpose of the Contract,the CONTRACTOR shall carry the following types of insurance in at least the limits specified below. Workers' Compensation—the required statutory amount Employer's Liability—$1,000,000 Personal Injury, Bodily Injury& Property Damage Liability—$1,000,000 per occurrence/$3,000,000 aggregate Automobile Bodily Injury&Property Damage Liability—$1,000,000 combined single limit for each accident. Excess Umbrella Liability—$5,000,000 for each occurrence -10- It is further agreed by the CONTRACTOR that, in the event the TOWN is sued in a court of law or equity, or demand is made upon the TOWN for payment of any damages arising out of the CONTRACTOR'S performance or non-performance of this Contract, then the CONTRACTOR, without reservation, shall indemnify and hold harmless the TOWN against any and all claims arising out of the CONTRACTOR'S performance or non-performance of the CONTRACT. To the full extent permitted by law, no official, employee, agent or representative of the TOWN of North Andover shall be individually or personally liable on any obligation of the TOWN under this Contract. -11- The CONTRACTOR agrees that the cost of Liquidated Damages shall be a fixed amount of FIVE HUNDRED and 00/100 DOLLARS ($500.00)for each consecutive calendar day the CONTRACTOR is in default of the Time for Completion condition for this contract. -12- This Contract is subject to all laws of the Commonwealth of Massachusetts, federal, state and local, which are applicable to this Contract or work with a public.entity; and it is presumed that the CONTRACTOR is cognizant thereof.Any and all proceedings or actions relating to the subject matter herein shall be brought and maintained in the courts of the Commonwealth,which shall have exclusive jurisdiction thereof.This paragraph shall not be construed to limit any other legal rights of the parties. -13- The CONTRACTOR agrees to comply with all the provisions of General Laws, Chapter 30,Sections 39M and 39N, and Chapter 149, Sections 26 and 27, and all related sections, including amendments thereto, in performing all work under this CONTRACT, and the provisions of said sections are made a part of this CONTRACT and are to be considered as covenants, terms and conditions hereof as though all the provisions were specifically incorporated herein, and the provisions of the said sections shall apply even though it may appear they are not applicable to the work of the type to be performed under this CONTRACT. The said CONTRACTOR agrees to pay the Wage Scale, as established by the Director of the Department of Labor Standards in the Executive Office of Labor and Workforce Development, a copy of which is attached hereto and marked "D" and the CONTRACTOR further agrees that, in the event that there are to be employees of classifications other than those specifically stated herein engaged in the work to be performed under this CONTRACT, to submit a list of the additional classifications of those to be employed to the Department Head involved in this project, and the said CONTRACTOR agrees that it will pay the Schedule of Wages, as determined by the said Director of the Department of Labor Standards in the Executive Office of Labor and Workforce Development, under the provisions of General Laws, Chapter 149, Section 27, and the amendments thereto. -14- The CONTRACTOR will carry out the obligations of this Contract in full compliance with all of the requirements imposed by or pursuant to General Laws c.151, §1, et seq. (Minimum Wage Law) and any executive orders, rules, regulations, and requirements of the Commonwealth of Massachusetts as they may from time to time be amended. The CONTRACTOR will at all times comply with the wage rates as determined by the Commissioner of the Department of Labor and Industries, under the provisions of General Laws c.149, §§26 to 27D (Prevailing Wage Law), as shall be in force and as amended. The CONTRACTOR will, in addition to any other submissions required by the Prevailing Wage Law, submit certified weekly payrolls to the TOWN with the information described in General Laws c.149, §27B. -15- The CONTRACTOR will carry out the obligations of this Contract in full compliance with all of the requirements imposed by or pursuant to General Laws c.1516 (Law Against Discrimination) and any executive orders, rules, regulations, and requirements of the Commonwealth of Massachusetts as they may from time to time be amended. The CONTRACTOR shall comply with all federal and state laws, rules and regulations promoting fair employment practices or prohibiting employment discrimination and unfair labor practices and shall not discriminate in the hiring of any applicant for employment nor shall any qualified employee be demoted,discharged or otherwise subject to discrimination in the tenure,position, promotional opportunities, wages, benefits or terms and conditions of their employment because of race, color, national origin, ancestry, age, sex, religion, disability, handicap, sexual orientation or for exercising any rights afforded by law. -16- The CONTRACTOR shall give its personal attention constantly to the faithful performance of the work and shall not assign or delegate, in whole or in part or otherwise transfer any liability, responsibility,obligation, duty or interest underthis Contract without the written approval of the TOWN. Any subcontract entered into by the CONTRACTOR for the purposes of fulfilling the obligations under this Contract must be in writing, authorized in advance by the TOWN and shall be consistent with and subject to the provisions of this Contract. Subcontracts will not relieve or discharge the CONTRACTOR from any duty,obligation,responsibility or liability arising under this Contract. The TOWN is entitled to copies of all subcontracts and shall not be bound by any provisions contained in a subcontract to which it is not a party. -17- This Contract shall not be in force until the CONTRACTOR has executed and delivered to the TOWN and until the TOWN has accepted a Bid Deposit of Five (5%) Percent of the value of the total bid or sub-bid; Payment Bond in the amount of One Hundred(100%)percent of the contract price; Performance Bond in the amount of One Hundred (100%) percent of the contract price. The Payment Bond and Performance Bond shall be secured by and paid for by the CONTRACTOR and shall be issued by a Surety Company satisfactory to the Department Head overseeing the CONTRACT. -18- It is further agreed that the TOWN may terminate this CONTRACT without cause, upon fourteen (14) days'written notice to the other party, sent by certified mail,to the usual place of business of the other party. The TOWN may also terminate this CONTRACT at any time for cause. -19- The undersigned certifies under penalties of perjury that this bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word "person" shall mean any natural person, business, partnership, corporation, union, committee,club or other organization, entity,or group of individuals. -20- It is understood and agreed by the TOWN and the CONTRACTOR that a Contract Performance Record Form must be completed on this contract by the Department Head or his designee who is supervising this contract, and such Contract Performance Record Form must be submitted to the TOWN Manager, TOWN Auditor, and Purchasing Agent prior to release of final payment under this contract. If requested by the CONTRACTOR a copy ofthe Contract Performance Record Form shall be furnished to the CONTRACTOR. -21- The CONTRACTOR certifies that any and all taxes and municipal fees due and owing to the TOWN of North Andover have been paid in full. -22- All fees for permits or licenses required for this project by the TOWN shall be waived, however, fees for all other permits or licenses required for this project shall be an expense of the CONTRACTOR. -23- Notwithstanding anything in the Contract documents to the contrary,any and all payments which the TOWN is required to make under this Contract shall be subject to appropriation or other availability of funds by the TOWN Accountant.The TOWN may immediately terminate or suspend this CONTRACT without liability on the part of the TOWN for damages, penalties or other charges in the event the appropriation funding this CONTRACT is terminated or reduced to an amount which will be insufficient to support anticipated future obligations under this CONTRACT. -24- This contract is only binding upon, and enforceable against the TOWN if: 1)the Contract is signed by the TOWN Manager or her designee; 2) and endorsed with approval of TOWN Counsel as to form. At any time during normal business hours, and as often as the TOWN may deem it reasonably necessary, there shall be available in the office of the CONTRACTOR for the purpose of audit, examination, and/or to make excerpts or transcript all records, contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. -25- This instrument, together with its endorsed supplements, and the other components of the contract documents, constitutes the entire contract between the parties, with no agreements other than those incorporated herein.Any Amendments to this Contract must be made in writing and executed by all signatories to the original Contract, prior to the effective date of the amendment. -26- Any notice permitted or required under the provisions of this Contract to be given or served by either of the parties hereto upon the other party hereto shall be in writing and signed in the name or on the behalf of the party giving or serving the same. Notice shall be deemed to have been received at the time of actual service or three (3) business days after the date of a certified or registered mailing properly addressed. Notice to the CONTRACTOR shall be deemed sufficient if sent to the address set forth in the Contract and to the TOWN of North Andover by being sent to the TOWN Manager,TOWN Hall, 120 Main Street, North Andover, Massachusetts 01845. IN WITNESS WHEREOF,the CONTRACTORS and the said TOWN OF NORTH ANDOVER have hereto and to a duplicate and triplicate hereof, caused their corporate seals to be affixed and these presents, together with said duplicate and triplicate, to be signed in their name and behalf by their duly authorized officers the day and year first above written. APPROVED: CONTRACTORS r` ey Melissa Murphy-Rodrigues Christo„pher M. Quinn Town Manager, North Andover President,Thomas E.Snowden, Inc APPROVED AS TO FORM: TOWN OF.NORT ANDOVER Christine P. O'Connor Town Counsel Department Head Ky WIne nountant Date: �� THOMESN-03 JDAY ACOROx CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDIYYYY) `11% � 1/16/2026 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CAME ACT Jamie Day Acrisure New England Partners Insurance Services,LLC PH No,Ext):(203)699-4500 j vc,No): 10 Research Parkway,Suite 400 Wallingford,CT 06492 ADDRESS: INSURERS AFFORDING COVERAGE NAIC# INSURER A:Massachusetts Bay Insurance Company 22306 INSURED INSURERB:Allmerica Financial Benefit Insurance Company 41840 Thomas E.Snowden Inc -INSURER C:The Hanover Insurance Company 22292 177 N Main Street INSURER D:Allmerica Financial Alliance Insurance Company 10212 Middleton,MA 01949 INSURER E:Navigators Insurance Company 42307 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUER POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR D A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 CLAIMS-MADE X OCCUR ZDNJ611917 12/31/2025 12/31/2026 DAMAGE TO RENTED 100,000 X X PREMISES Ea occurrence $ X BLKT Contractual MED EXP(Any oneperson) $ 10,000 X XCU Hazards PERSONAL&ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 210001000 � PRO- POLICY LOC PRODUCTS-COMP/OP AGG $ 2,000,000 OTHER: $ B AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1,000,000 Ea accident $ ANY AUTO X X AWNJ611952 12/31/2025 12/31/2026 BODILY INJURY Perperson) $ OWNED SCHEDULED AUTOS ONLY X AUTOS BODILY INJURY Per accident $ X HIRED X NON-OWNED PROPERTY DAMAGE AUTOS ONLY AUTOS ONLY Per accident $ C+ X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 10,000,000 EXCESS LIAB CLAIMS-MADE X X UHNJ611919 12/31/2025 12/31/2026 AGGREGATE $ 10,000,000 DED X RETENTION$ 0 D WORKERS COMPENSATION X PER OTH- AND EMPLOYERS'LIABILITY STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVE Y� NIA X WKNJ579771 12/31/2025 12/31/2026 1,000,000 OFFICER/MEMBER EXCLUDED? E.L.EACH ACCIDENT $ (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under 1,000,000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ E Pollution w/Mold X X NY25ECPX01512NC 8/13/2025 8/13/2026 1,000,000 Occur/Agg 3,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) The Town of North Andover is named as additional insured. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Town of North Andover THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 120 Main Street North Andover,MA 01845 AUTHORIZED REPRESENTATIVE 1'" IZ ACORD 25(2016103) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ATTACHMENT D MUNICIPAL CONTRACTS STATE ASSISTED BUILDING PROJECTS MODEL CONTRACT INSTRUCTIONS TO BE ATTACHED AS AN APPENDIX to General Conditions of the Contract GOALS FOR PARTICIPATION BY MINORITY BUSINESS ENTERPRISES(MBE),WOMEN BUSINESS ENTERPRISES (WBE)AND VETERAN/SERVICE-DISABLED VETERAN BUSINESS ENTERPRISES (VBE/SDVOBE) PURSUANT TO M.G.L. c. 7§61(n). 1. GOALS The goals for minority business enterprise(MBE),woman business enterprise (WBE) and veteran business enterprise/service-disabled veteran business enterprise (VBE/SDVOBE) participation established for this Contract, in accordance with the Massachusetts Municipal Construction Affirmative Marketing Program, established pursuant to M.G.L. c. 7 § 61 (n) and (p) are as set forth below and in the Owner - Contractor Agreement. To count towards MBE, WBE and/or VBE/SDVOBE participation,the business must be a Supplier Diversity Office (SDO) certified MBE, WBE and/or VBE/SDVOBE at the time of contract execution. Certification Category Insert MBE and WBE Goals Below MBE WBE VBE/SDVOBE 3% 2. MBE,WBE and VBE/SDVOBE PARTICIPATION CREDIT A. If the Contractor is itself a MBE, WBE and/or VBE/SDVOBE, MBE, WBE and/or VBE/SDVOBE participation credit shall be given in an amount equal to the entire Contract Price. If the Contractor is not an MBE, WBE and/or VBE/SDVOBE, then MBE, WBE and/or VBE/SDVOBE participation credit will be given for the value of the Work that is actually performed by each MBE, WBE or VBE/SDVOBE subcontractor or sub-subcontractor. B. If the Contractor is a joint venture with one or more MBEs, WBEs and/or VBEs/SDVOBEs participating in the joint venture, MBE, WBE and/or VBE/SDVOBE participation credit shall be given to the joint venture as follows: (1) If the joint venture is certified by the Supplier Diversity Office (SDO) as an MBE, WBE and/or VBE/SDVOBE,then MBE,WBE and/or VBE/SDVOBE Participation credit shall be given in an amount equal to the entire Contract Price. (2) If the joint venture is not certified as an MBE, WBE and/or VBE/SDVOBE by SDO, then MBE, WBE and/or VBE/SDVOBE participation credit shall be given to the joint venture forthe value of the Workthat is performed by the MBE,WBE and/or VBE/SDVOBE joint mass.gov/sdo venture(s),and for the value of the Work that is actually performed by each MBE,WBE and/or VBE/SDVOBE subcontractor or sub-subcontractor. C. If an MBE, WBE and/or VBE/SDVOBE supplies, but does not install equipment or materials, MBE, WBE and/or VBE/SDVOBE participation credit shall be given only if the MBE, WBE and/or VBE/SDVOBE supplier is regularly engaged in sales of equipment or supplies to the construction industry from an established place of business. MBE, WBE and/or VBE/SDVOBE participation credit shall be given the full amount of the purchase order only if the MBE,WBE and/or VBE/SDVOBE supplier manufactures the goods or substantially alters them before resale. Otherwise,a contractor may count toward its MBE, WBE and/or VBE/SDVOBE goal 60 percent of the total bid price for its expenditures of its materials and supplies required under a contract and obtained from a MBE, WBE and/or VBE/SDVOBE regular supplier. D. MBE participation credit shall be given for the work performed by MBEs only, WBE participation credit shall be given for the work performed by WBEs only and VBE/SDVOBE participation credit shall be given for the work performed by VBEs/SDVOBEs only. For example, MBE participation may not be substituted for WBE or VBE/SDVOBE participation, nor may WBE or VBE/SDVOBE participation be substituted for MBE participation, etc. 3. ESTABLISHING MBE,WBE and/or VBE/SDVOBE STATUS A. A MBE, WBE and/or VBE/SDVOBE shall be considered as an MBE, WBE and/or VBE/SDVOBE respectively only if it has been certified by the SDO in its respective certification category at the time of contract award.11 B. Certification as a disadvantaged business enterprise ("DBE"), certification as MBE, WBE and/or VBE/SDVOBE by any agency or organization other than the SDO, or submission of an application to SDO for certification as an MBE,WBE and/or VBE/SDVOBE shall not confer MBE, WBE and/or VBE/SDVOBE status on a firm for the purposes of this Contract. 4. SUBCONTRACTS WITH MBEs. WBEs and/or VBEs/SDVOBEs Within thirty (30) days after the award of this Contract, the Contractor shall (i) execute a subcontract with each MBE, WBE and/or VBE/SDVOBE Subcontractor which has executed a Letter of Intent Approved by the Awarding Authority, (ii) cause its Subcontractors to execute a sub- subcontract with each MBE, WBE and/or VBE/SDVOBE sub-subcontractor, and (iii) furnish the Awarding Authority with a signed copy of each such subcontract and sub-subcontract. S. PERFORMANCE OF CONTRACT WORK BY MBEs,WBEs and/or VBEs/SDVOBEs A. The Contractor shall not perform with its own organization or subcontract or assign to any other firm work designated to be performed by any MBE, WBE and/or VBE/SDVOBE in the Letters of Intent or Schedule of MBE, WBE and/or VBE/SDVOBE Participation without the ii Should the Awarding Authority suspect a transfer of ownership to be in bad faith to take advantage of the MCAMP program,it reserves all available legal remedies,including but not limited to,termination of this contract.The Awarding Authority further reserves the right to enforce MCAMP participation goals to the fullest extent of the law,including, but not limited to,coordinating with the Massachusetts Attorney General's Office. mass.gov/sdo prior Approval of the Awarding Authority, nor shall any MBE, WBE and/or VBE/SDVOBE assign or subcontract to any other firm, or permit any other firm to perform any of its MBE, WBE and/or VBE/SDVOBE Work without the prior Approval of the Awarding Authority. Any such unapproved assignment, subcontracting, sub-subcontracting, or performances of MBE, WBE and/or VBE/SDVOBE Work by others shall be a change in the MBE, WBE and/or VBE/SDVOBE Work for the purposes of this Contract.THE AWARDING AUTHORITY WILL NOT APPLY TO THE MBE, WBE and/or VBE/SDVOBE PARTICIPATION GOAL(S) ANY SUMS ATTRIBUTABLE TO SUCH UNAPPROVED ASSIGNMENTS, SUB-CONTRACTS, SUB-SUBCONTRACTS, OR PERFORMANCE OF MBE,WBE and/or VBE/SDVOBE WORK BY OTHERS. B. The Contractor shall be responsible for monitoring the performance of MBE, WBE and VBE/SDVOBE Work to ensure that each scheduled MBE, WBE and/or VBE/SDVOBE performs its own MBE, WBE and/or VBE/SDVOBE Work with its own workforce. C. The Contractor and each MBE, WBE and VBE/SDVOBE shall provide the Awarding Authority with all information and documentation that the Awarding Authority determines is necessary to ascertain whether or not an MBE, WBE and/or VBE/SDVOBE has performed its own MBE, WBE and/or VBE/SDVOBE Work. At the discretion of the Awarding Authority, failure to submit such documentation to the Awarding Authority shall establish conclusively for the purpose of giving MBE, WBE and/or VBE/SDVOBE participation credit under this Contract that such MBE, WBE and/or VBE/SDVOBE did not perform such work. (1) With each progress payment request submitted by the Contractor to the Awarding Authority, the Contractor must provide the Contractor Progress Payment Report (Exhibit A) indicating the value of payments for each MBE,WBE and VBE/SDVOBE firms for that period. • Note that should it be deemed more efficient, the Awarding Authority may instruct the Contractor to utilize a different payment reporting methodology, including, but not limited to, an online reporting system, and/or modifications to the Contactor Progress Payment Report form. 6. NOTIFICATION OF CHANGES IN MBE,WBE and/or VBE/SDVOBE WORK A. If at any time during the performance of the Contract the Contractor determines or has reason to believe that a scheduled MBE, WBE and/or VBE/SDVOBE is unable or unwilling to perform its MBE, WBE and/or VBE/SDVOBE Work, or that there has been or will be a change in any MBE, WBE and/or VBE/SDVOBE Work, or that the Contractor will be unable to meet the MBE,WBE and/or VBE/SDVOBE participation goal(s)for this Contract for any reason,the Contractor shall immediately notify the Awarding Authority Contract Compliance Office in writing of such circumstances. B. Any notice of a change in MBE, WBE and/or VBE/SDVOBE Work pursuant to subparagraph "A" above shall include a revised Schedule of MBE, WBE and/or VBE/SDVOBE Participation, and additional or amended Letters of Intent and subcontracts, as the case may be. C. Contractor is expected to conduct reasonable efforts to replace MBE, WBE and/or VBE/SDVOBE contractors in order to meet the participation goals set for this contract as stated below when doing so will not result in unreasonable project delay. • Contractor shall coordinate with the A W gsro d g\g/¢d tk t h o r i t y and the SDO to locate other MBE, WBE and/or VBE/SDVOBE contractors to participate on the project in the event a listed MBE, WBE and/or VBE/SDVOBE should lose its certification status during the contract and be unable to recertify within a timely manner. 7. ACTIONS REQUIRED IF THERE IS A CHANGE IN MBE.WBE and/or VBE/SDVOBE PARTICIPATION A. In the event there is a change or reduction in any MBE, WBE and/or VBE/SDVOBE Work which will result in the Contractor failing to meet the MBE, WBE and/or VBE/SDVOBE participation goal(s)for this Contract, other than a reduction in MBE, WBE and/or VBE/SDVOBE Work resulting from a Change Order initiated by the Awarding Authority,then the Contractor shall immediately undertake a diligent, good faith effort to make up the shortfall in MBE,WBE and/or VBE/SDVOBE participation as follows: (1) The Contractor shall identify all items of the Work remaining to be performed under the Contract that may be made available for subcontracting to MBEs, WBEs and/or VBEs/SDVOBEs. The Contractor shall send a list of such items of work to the Awarding Authority, together with a list of the remaining items of the Work that was not made available to MBEs, WBEs and/or VBEs/SDVOBEs and the reason for not making such work available for subcontracting to MBEs, WBEs and/or VBEs/SDVOBEs. (2) The Contractor shall send written notices soliciting proposals to perform the items of the Work that may be made available for subcontracting to MBEs, WBEs and/or VBEs/SDVOBEs to all MBEs,WBEs and/or VBEs/SDVOBEs qualified to perform such work. The Contractor shall advise the Awarding Authority of (i) each MBE, WBE and/or VBE/SDVOBE solicited, and (ii) each MBE, WBE and/or VBE/SDVOBE listed in the SDO directory under the applicable trade category that was not solicited and the reasons therefore that no qualified MBEs, WBEs and/or VBEs/SDVOBEs are available, qualified MBEs, WBEs and/or VBEs/SDVOBEs did not respond, lack of eligible MBEs, WBEs and/or VBEs/SDVOBEs in the geographical region, or there are no certified MBEs,WBEs and/or VBEs/SDVOBEs certified in the scope of work of the project including the opportunity for subcontracting. The Contractor shall also advise the Awarding Authority of the dates notices were mailed and provide a copy of the written notice(s)sent. (3) The Contractor shall make reasonable efforts to follow up the written notices sent to MBEs, WBEs and/or VBEs/SDVOBEs with telephone calls or personal visits in order to determine with certainty whether the MBEs, WBEs and/or VBEs/SDVOBEs were interested in performing the work. Phone logs or other documentation must be submitted to the Awarding Authority evidencing this effort. (4) The Contractor shall make reasonable efforts to assist MBEs,WBEs and/or VBEs/SDVOBEs that need assistance in obtaining insurance, bonds, or lines of credit in order to perform work under the Contract and shall provide the Awarding Authority with evidence that such efforts were made. (5) The Contractor shall provide the Awarding Authority with a statement of the response received from each MBE, WBE and/or VBE/SDVOBE solicited, including the reason for rejecting any MBE, WBE and/or VBE/SDVOBE who submitted a proposal. mass.gov/sdo (6) The Contractor shall take any additional measures reasonably requested by the Awarding Authority to meet the MBE, WBE and/or VBE/SDVOBE participation goal(s) established for this Contract, including, without limitation, placing advertisements in the Supplier Diversity Hub and in appropriate media and trade association publications announcing the Contractor's interest in obtaining proposals from MBEs,WBEs and/or VBEs/SDVOBEs, and/or sending written notification to MBE, WBE and/or VBE/SDVOBE economic development assistance agencies,trade groups and other organizations notifying them of the project and of the work available to be subcontracted by the Contractor to MBEs, WBEs and/or VBEs/SDVOBEs. B. If the Contractor is otherwise in full compliance with the terms of this Appendix but unable to meet the MBE, WBE and/or VBE/SDVOBE participation goals for this Contract after complying fully with each of the requirements of paragraph "A" above, the Awarding Authority may adjust the MBE,WBE and/or VBE/SDVOBE participation goals for this Contract to the extent that such goals cannot be achieved, as referenced in Attachment C. 8. SUSPENSION OF PAYMENT and/or PERFORMANCE FOR NONCOMPLIANCE. A. If at any time during the performance of this Contract, the Awarding Authority determines or has reason to believe that (1) there has been a change or reduction in any MBE, WBE and/or VBE/SDVOBE Work which will result in the Contractor failing to meet the MBE, WBE and/or VBE/SDVOBE participation goal(s) for this Contract, other than a reduction in MBE, WBE and/or VBE/SDVOBE Work resulting from a change in the Contract work ordered by the Awarding Authority, and (2) the Contractor has failed to comply fully with all of the terms and conditions of paragraphs 1 through 7 above,the Awarding Authority may: (1) Suspend payment to the Contractor of an amount equal to the value of the work which was to have been performed by an MBE, WBE and/or VBE/SDVOBE pursuant to the Contractor's Schedule of MBE, WBE and VBE/SDVOBE Participation but which was not so performed, in order to ensure that sufficient Contract funds will be available if liquidated damages are assessed pursuant to paragraph 9, and/or (2) Suspend the Contractor's performance of this Contract in whole or in part. B. The Awarding Authority shall give the Contractor prompt written notice of any action taken pursuant to paragraph A above and shall give the Contractor and any other interested party, including any MBEs, WBEs and/or VBEs/SDVOBEs,an opportunity to present evidence to the Awarding Authority that the Contractor is in compliance with the requirements of this Appendix or that there is some justifiable reason for waiving the requirements of this Appendix in whole or in part. The Awarding Authority may invite SDO to participate in any proceedings undertaken pursuant to this paragraph. C. Upon a showing that the Contractor is in full compliance with the requirements of this Appendix, or that the Contractor has met or will meet the MBE, WBE and VBE/SDVOBE participation goals for this Contract,the Awarding Authority shall release any funds withheld pursuant to clause A(1)above and lift any suspension of the Contractor's performance under clause A(2) above. mass.gov/sdo 9. LIQUIDATED DAMAGES;TERMINATION A. If payment by the Awarding Authority or performance by the Contractor is suspended by the Awarding Authority as provided in paragraph 8 above,the Awarding Authority shall have the following rights and remedies if the Contractor thereafter fails to take all action necessary to bring the Contractor into full compliance with the requirements of this Appendix, or if full compliance is no longer possible because the default of the Contractor is no longer susceptible to cure, if the Contractor fails to take such other action as may be required by the Awarding Authority to meet the MBE, WBE and VBE/SDVOBE participation goals set forth in this Contract: (1) The Awarding Authority may terminate this Contract, and/or (2) The Awarding Authority may retain from final payment to the Contractor, as liquidated damages, an amount equal to the difference between: (a) The total of the MBE, WBE and VBE/SDVOBE participation goals set forth in this Contract, and (b) The amount of MBE, WBE and VBE/SDVOBE participation credit earned by the Contractor for MBE, WBE and/or VBE/SDVOBE Work performed under this Contract as determined by the Awarding Authority,the parties agreeing that the damages for failure to meet the MBE, WBE and VBE/SDVOBE participation goals are difficult to determine and that the foregoing amount to be retained by the Awarding Authority represents the parties' best estimate of such damages. Any liquidated damages will be assessed separately for MBE, WBE and VBE/SDVOBE participation. B. Before exercising its rights and remedies hereunder, the Awarding Authority may give the Contractor and any other interested party another opportunity to present evidence to the Awarding Authority that the Contractor is in compliance with the requirements of this Appendix or that there is some justifiable reason for waiving the requirements of this Appendix in whole or in part. The Awarding Authority may invite SDO to participate in any proceedings undertaken hereunder. 10. REPORTING REQUIREMENTS The Contractor shall submit to the Awarding Authority all information or documentation that is necessary in the judgment of the Awarding Authority to ascertain whether or not the Contractor has complied with any of the provisions of this Article. 11.AWARDING AUTHORITY'S RIGHT TO WAIVE PROVISIONS OF THIS APPENDIX IN WHOLE OR IN PART The Awarding Authority reserves the right to waive any provision or requirement of this Appendix if the Awarding Authority determines that such waiver is justified and in the public interest. No such waiver shall be effective unless it has been submitted by the Awarding Authority in writing to and subsequently approved in writing by the Executive Director of the Supplier Diversity Office (SDO). No other action or inaction by the Awarding Authority shall be construed as a waiver of any provision of this Appendix. mass.gov/sdo