PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Date of Report (Date of earliest event reported): May 26, 2018
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Delaware
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32-0498321
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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14201 Caliber Drive, Suite 300
Oklahoma City, Oklahoma
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73134
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(Address of principal executive offices)
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(Zip Code)
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Exhibit Number
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Description
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*Filed herewith.
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**Furnished herewith.
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MAMMOTH ENERGY SERVICES, INC.
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Date:
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May 31, 2018
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By:
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/s/ Mark Layton
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Mark Layton
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Chief Financial Officer and Secretary
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1)
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Engineer - shall mean the Transmission and Distribution Director of PREPA, acting directly or through his properly authorized representatives.
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2)
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Contracting Officer - shall mean PREPA’s Executive Director/Chief Executive Officer, acting directly or through his properly authorized representatives.
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3)
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Contract - shall mean collectively, all the covenants, terms, and stipulations in these articles of agreement and in all supplementary documents hereto attached which constitute essential parts of the Contract and are hereby made part thereof, to wit:
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4)
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Change order - A written agreement between the Parties that sets out changes in price, time, or scope of work to the Contract, which has been approved by the appropriate official pursuant to the general authorization for approval.
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5)
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Contract Release – A purchase order created with reference to this Contract, the contract release documentation (order date, quantity, value, number of the contract release order, account number, among others) is included as part of each release.
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4.1
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Inspection and Delivery
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4.2
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Schedule of Proposed Progress
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4.3
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Contract Term
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5.1
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PREPA may, at any time, suspend the whole or any portion of the work under this Contract, by providing Contractor with a written notice stating the reasons for suspension at least five (5) days in advance of the day the suspension shall take effect. The right of PREPA to suspend the work shall not be construed as denying the Contractor all actual, reasonable and necessary costs and expenses due to the delays caused by such suspension.
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5.2
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Either Party may suspend the whole or any portion of the work under this Contract by reason of the occurrence of a force majeure event as described in Article 10 herein.
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5.3
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In case of suspension of the work by PREPA for any reason, or in case the work is suspended in whole or in part due to the occurrence of a force majeure event, Contractor’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any such suspension. Contractor will also have the right to claim lost revenue standing time of manpower and equipment, and overhead costs.
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5.4
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If the suspension extends for more than fifteen (15) days, the Contractor shall have the right to an equitable adjustment to the amounts payable to Contractor and the Contract
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1)
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The Contractor shall permit all persons appointed or authorized by PREPA to visit and inspect the work or any part thereof at all times and places during the progress of same.
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2)
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Subject to appropriate safety considerations, the Contractor agrees to provide the FEMA Administrator or his authorized representatives’ access to work sites pertaining to the work being completed under the Contract.
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A.
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Commonwealth of Puerto Rico Workers Compensation Insurance
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B.
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Employer’s Liability Insurance
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C.
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Commercial General Liability Insurance
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D.
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Automobile Liability Insurance
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a.
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As additional insured:
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b.
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30 day cancellation or nonrenewable notice to be sent to the above address.
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c.
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An endorsement including this Contract under contractual liability coverage and identifying it in number, date and parties to the contract.
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d.
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Waiver of Subrogation in favor of PREPA.
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e.
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Breach of Warranties or Conditions: “The breach of any of the Warranties or Conditions in this policy by the Contractor shall not prejudice PREPA’s rights under this policy.”
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1.
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A Performance Bond in the amount of one hundred percent (100%) of the amount specified in the applicable work release, with a good and sufficient surety satisfactory to PREPA guaranteeing that the Contractor will well and faithfully perform the work specified in such work release.
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2.
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A Payment Bond in the amount of one hundred percent (100%) of the amount specified in the applicable work release, with a good and sufficient surety satisfactory to PREPA to guarantee the prompt payment of all labor, supervision, equipment and materials required in the performance of the work specified in such work release.
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3.
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All bonds shall be issued in the Official PREPA forms.
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1)
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PREPA and the Contractor agree that Contractor’s status hereunder and the status of any agents, employees and subcontractors engaged by the Contractor shall be that of an independent contractor only and not that of an employee, agent, director or officer of PREPA nor shall they be considered a public servant of neither PREPA nor the Commonwealth of Puerto Rico. The Contractor recognizes that its personnel shall not be entitled to employment benefits such as vacations, sick leave, retirement benefits and other benefits from PREPA because of its condition as an independent contractor. Neither the Contractor nor its personnel shall have any power or right to enter into contracts on behalf of PREPA. No provision of this Contract shall be deemed to create an employment relationship between Contractor or his employees, agents or subcontractors and PREPA.
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2)
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The employees of Contractor engaged in performing services hereunder will be considered employees of Contractor for all purposes and will under no circumstances be deemed to be employees of PREPA. PREPA will have no supervisory power or control over any such Contractor’s employees and any complaint or change in procedure will be communicated transmitted by PREPA to Contractor who will in turn promptly give any necessary instructions to its own personnel.
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3)
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Contractor will be responsible for the direct supervision of its employees through its designated representative and such representative will in turn, report to and confer with the designated agents of PREPA with respect to the services.
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4)
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Except as expressly provided otherwise in this Contract, Contractor agrees to assume full and complete responsibility for any and all liability to its employees on account of injury, disability, and death resulting from, or sustained by said employees in the performance of the services defined herein.
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5)
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At PREPA’s request, Contractor will immediately remove from service any employee whose acts or omissions will be a violation of applicable law or constitute a breach of this Contract.
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6)
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Both parties agree to accept full and exclusive liability for the payment of any and all taxes, contributions, and other payments for unemployment compensation and/or pension benefits, Worker’s Compensation, employers liability insurance or annuities now or hereafter imposed upon employers as applicable to them with respect to its employees and each party will make such payments and will make and file any and all reports and returns and take all other actions
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7)
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Contractor represents and warrants that the employees used in the performance of the services hereunder will have the qualifications, skills and experience necessary to perform the services and will have the work records as represented to PREPA.
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8)
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In the performance of the Contract, Contractor will comply with all applicable statutes, regulations, ordinances pertaining to nondiscrimination in employment and facilities.
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1)
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Notwithstanding anything to the contrary in this Contract regarding its term, PREPA may, at any moment, terminate, cancel or accelerate its expiration, after giving the Contractor not less than thirty (30) days prior written notice, for any or no reason, when in PREPA’s judgment such action responds to its best interest. PREPA may terminate this Agreement immediately at any time in cases of gross negligence by the Contractor upon written notice to Contractor specifying such gross negligence.
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2)
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PREPA may terminate this Contract (or any portion thereof) for any cause if Contractor (I) becomes insolvent, or (ii) in is material breach of the service obligation, which does not otherwise have a specified contractual remedy, and fails to cure the breach within thirty (30) days of notice from PREPA; or fails to commence to cure the material breach and diligently proceed with the cure if it is not possible to cure within thirty (30) days of such notice. .
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3)
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If this Contract is so terminated, the Contractor shall be compensated in accordance with the terms of this Contract for all work performed through the termination date and for actual, reasonable, and necessary expenses, including reasonable demobilization costs caused by such termination, which shall apply in the case of Termination by either Party for any reason.
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4)
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Breach By PREPA. Upon written notice to PREPA from Contractor stating that PREPA is in material breach of the Contract, PREPA will immediately remedy such material breach. Where PREPA fails to remedy such material breach within ten (10) days or to promptly initiate and continue in good faith to remedy a material breach that cannot be reasonably remedied in ten (10) days, Contractor will have the right to terminate the Contract upon five (5) days’ notice to PREPA. PREPA further agrees that if it commits a substantially similar material breach more than twice in any one (1) month period, regardless of remedy, Contractor will have the right to terminate the Contract upon notice to PREPA.
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1)
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If the Contract is terminated for any reason, the Contractor shall stop work as specified in the termination notice provided by PREPA, and shall be prohibited from incurring additional obligations of Contract funds. PREPA may allow costs that the Contractor could not reasonably avoid during the termination process to the extent that said costs are determined to be necessary and reasonable.
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2)
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In the event of a termination, all work in process, finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports, property and any other items or deliverables prepared by the Contractor that would be furnished to PREPA, the Commonwealth of Puerto Rico, or the Federal government if the Contract had been fully performed shall, unless otherwise stated in writing by PREPA, become PREPA’s property.
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3)
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Following termination, the Contractor shall submit a final termination settlement proposal to PREPA in the form and with the certification prescribed by PREPA. The Contractor shall submit the final termination settlement proposal promptly, but no later than one year from the effective date of termination, unless extended in writing by PREPA upon written request of the Contractor within this one-year period. The Contractor and PREPA may agree upon the whole or any part of the amount to be paid or remaining to be paid because of the termination.
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1)
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The Contractor represents conflicting interests when on behalf of a client he must contend for that which it is his duty to oppose to comply with its obligations with another previous, present or potential client. Also, the Contractor represents conflicting interests when his conduct is described as such in the canons of ethic applicable to the Contractor and his personnel or in the laws or regulations of the Commonwealth of Puerto Rico.
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2)
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In the event that any of the partners, directors or employees of the Contractor should incur in the conduct described herein, said conduct shall constitute a violation to the prohibitions provided herein. The Contractor shall avoid even the appearance of the existence of conflicting interests.
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3)
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The Contractor acknowledges that PREPA’s Contracting Officer shall have the power to intervene the acts of the Contractor and/or its agents, employees, and subcontractors regarding the enforcement of the prohibitions contained herein. In the event that PREPA
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4)
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The Contractor certifies that, at the time of award of this Contract, it does not have any other contractual relation that can enter in a conflict of interest with this Contract. The Contractor also certifies that no public employee has any personal or economical interest in this Contract.
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1)
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In the event that the Contractor or any of his subcontractors or agents do not comply with an order issued by the Puerto Rico Labor Relations Board and/or the National Labor Relations Board upon their finding that the Contractor or any of his subcontractors or agents have committed an unfair labor practice, no further payments shall be made by PREPA to the Contractor after the date of said order. In addition, the Contract may be terminated by PREPA, in which case PREPA may take possession of the materials, tools, and appliances on the job site and finish the work by whatever method it may deem expedient.
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2)
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Any declaration by the Puerto Rico Labor Relations Board and/or by the National Labor Relation Board that the contractors or agents have not complied with an order issued by the Board relating to any unfair labor practice, shall be binding, final and conclusive unless such order is reversed or set aside by a Court of competent jurisdiction.
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1)
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PREPA agrees to give the Contractor immediate notice of any and all claims for which the Contractor may be liable, and the Contractor agrees to give PREPA immediate notice of any and all claims for which PREPA may be liable.
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2)
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Any notice to be given hereunder shall be in writing and will be sufficiently served when delivered in person or properly mailed or emailed to the following addresses:
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Attention:
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Eng. José Sepúlveda
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1)
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The Program shall comply with the following minimum requirements of a health and safety program, according with the scope of the project including, but not limited to:
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i.
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Occupational Exposure to Noise (29 CFR 1910.95)
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ii.
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Hazardous Materials (29 CFR 1910 Subpart H)
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iii.
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Personal Protective Equipment (29 CFR 1926 Subpart E)
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iv.
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Hazard Communication (29 CFR 1910.1200)
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v.
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Fire Protection (29 CFR 1910 Subpart L)
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vi.
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Electrical work (29 CFR 1926 Subpart K)
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vii.
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Tools, Hand and Powered (1926 Subpart I)
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viii.
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Lockout/Tag out (29 CFR 1910.147)
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ix.
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Portable Ladders
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x.
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Electric Power Generation, Transmission and Distribution (29 CFR 1910.269)
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2)
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The Program shall be revised annually.
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3)
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It shall include an accident or incident investigation procedure. This procedure will always include the preparation of a report, which will be submitted within five days after accident to the Safety Division of PREPA.
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4)
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The Contractor shall include a Safety Officer.
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5)
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Safety inspections and work permit system shall be included.
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6)
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Before commencement of work, the Contractor shall take part in a coordination meeting with a Safety Officer and the project manager on PREPA’s behalf. During this meeting the areas to be worked on will be toured, the site-specific work plan will be discussed and reviewed, and amendments to it could be required.
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7)
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The Contractor shall submit, prior to commencement of the work, for evaluation by the Safety Division the following:
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a.
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A Site Specific Work Plan including: the scope of work, description of the activities to be done, special safety and health considerations to be addressed before commencement of the project, safety procedures to be applied and used during the project specially for excavations, work zone protection, scaffolding and crane operations. It shall also include any other regulation or guidelines related to safety and health that could be applicable to the scope of work, contingency procedures that include how to proceed in an emergency situation, such as fire or chemical spill, among others. Also, identify medical services in the municipality of work to maintain communication in case of any medical emergency.
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b.
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A list of all specialized personnel needed. Also, include copy of all training certificates, licenses or certifications required, according to the scope of work. For example: tree trimming, crane operator, pesticide applicator, electrician, spill responder, excavations competent person, DOT training for hazardous substances, etc. All these certificates and licenses shall be up to date.
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c.
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Copy of the Safety Data Sheets (SDS) of all chemical products to be used during the project, for evaluation and approval by the Occupational Safety Division at PREPA (Hazard Communication Section).
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d.
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Certification of compliance with medical surveillance requirements, according to scope of work.
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e.
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Certification of compliance with Fit Test requirements for the use of negative pressure respirators if applicable.
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f.
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Certification of training for the use of personal protective equipment.
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8)
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Each Contractor/Subcontractor shall adhere to a 100% drug /alcohol free work zone.
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9)
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The Contractor shall be responsible for maintaining good housekeeping in the work, rest, lunch and toilet areas and under reasonably sanitary conditions.
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10)
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If the contracted services include demolition activities (as defined per ANSI A10.6 – 1990: Demolition – the dismantling, razing or wrecking of any fixed building or structure or any part thereof) that will be carried out in buildings or structures, that because of their construction date or prior use, are suspected to contain asbestos, lead based paint or other hazardous materials, the contractor will require a certification from the project manager or owner stating that the building or structure is free of such materials.
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11)
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Services including activities inside buildings occupied by working personnel, that could create a hazard to their safety or health, will be offered after PREPA’S working hours. The exception will be if the contractor could take all the necessary precautions to protect PREPA’s employees
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12)
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The Contractor shall assure that all wastes generated by Contractor as a part of the Work are removed and properly disposed of, in accordance with all applicable laws and regulations, at the end of every work shift and after the completion of the project.
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13)
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All non-contained chemical products to be used shall be classified as Approved or Conditionally Approved by PREPA’s Hazard Communication Section.
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14)
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Welding operations will comply with the requirements of OSHA, ANSI and NFPA.
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15)
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If the project involves the handling of non-asbestos insulation or other dust generating materials, like gypsum board, steps shall be taken to prevent the release of the dust to adjacent areas.
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16)
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The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to all employees on the work site and all other persons who may be affected. This shall include property, material and equipment on or off the site, under the care, custody or control of the Contractor or any of the subcontractors.
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17)
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The Contractor shall comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. Shall erect and maintain, as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities.
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18)
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If near populated areas, any excavation made by the contractor shall be covered, protected or barricaded after work hours or if it will be left unattended.
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19)
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The contractor shall notify and coordinate any excavation with the “Centro de Coordinación de Excavaciones y Demoliciones” if applicable.
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20)
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The work zone near any public road shall be protected using, signs, cones, barricades, etc. in accordance with the MUTCD and DOT. In this conditions, any employee in or around the work zone shall use a reflective vest in accordance with MUTCD.
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21)
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Access to the work zone shall be prohibited to any person not related to the project by means of signs, barricades, fences or a combination of them.
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22)
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The Contractor shall designate an employee as their safety officer for the project. The duties of the safety officer could be in addition to his/her normal duties. The safety officer shall be in charge of the prevention of accidents and the implementation of the Safety and Health Program Plan and the Site-specific Plan in coordination with PREPA´s Safety Officer, Project Manager and Resident Engineer. The contractor safety officer shall have a basic training of 30 hours in Occupational Safety and Health Standards for Construction Industry from an approved OSHA Training Center. Evidence of the training shall be submitted if requested by PREPA.
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23)
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Compliance with all safety provisions by subcontractors shall be the responsibility of the Contractor.
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24)
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Contractor agrees that it shall perform all work in compliance with federal, state and local occupational safety and health regulations, as described in the Site Specific Work Plan.
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25)
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Contractor will obtain and maintain, during the duration of the project, the proper permits from all federal, state and local regulatory authorities or other applicable government agency with respect to discharge, disposal, use, storage, handling and transportation of hazardous chemicals and substances as and when applicable law or regulation requires. For projects including the handling of asbestos, lead, or spilled hazardous substances, the notification to EPA or the EQB will be done by the Contractor, but in coordination with the Safety Officer and the Environmental Advisor or Officer.
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26)
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Contractor will not cause or permit any hazardous chemical or product containing a hazardous chemical to be at, or in the vicinity of, any place where any employee, agent, or contractor of Puerto Rico Electric Power Authority, or any employee of any such agent or Contractor, may be at risk or exposed to hazard as a result thereof during normal use or any foreseeable emergency.
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44.1
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Labor: Payments for labor shall be computed by multiplying the minimum daily rate prescribed in the attached schedule of rates set forth on Exhibit B by the number of days. The daily rates shall include wages, indirect costs, general and administrative expense, and profit.
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44.2
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Materials: PREPA will reimburse Contractor for allowable cost of materials, including direct materials, subcontracts for supplies and incidental services for which there is not a labor c
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1)
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An Income Tax Return Filing Certificate, issued by the Treasury Department of Puerto Rico, Area of Internal Revenues, assuring that Cobra Acquisitions LLC has filed his Income Tax Return for the last five (5) years.
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2)
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Certification issued by the Treasury Department of Puerto Rico which indicates that it does not owe taxes to the Commonwealth of Puerto Rico; or is paying such taxes by an installment plan in full compliance with its terms.
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3)
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Sales and Use Tax Filing Certificate, issued by the Treasury Department of Puerto Rico, Area of Internal Revenues.
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4)
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Certification issued by the Treasury Department of Puerto Rico which indicates that it does not owe Puerto Rico Sales and Use Taxes to the Commonwealth of Puerto Rico; or is paying such taxes by an installment plan in full compliance with its terms.
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5)
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Certification issued by the Municipal Revenues Collection Center (MRCC), assuring that Cobra Acquisitions LLC does not owe any tax to such governmental agency.
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6)
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Certification issued by Municipal Revenues Collection Center (MRCC) demonstrating that Cobra Acquisitions LLC has filed the Personal Property Tax Return to such governmental agency. Additionally, if Cobra Acquisitions LLC does not own personal property in the Commonwealth of Puerto Rico, Cobra Acquisitions LLC shall provide a sworn statement which states that:
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a)
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During the last five years, Cobra Acquisitions LLC has not owned personal property in the Commonwealth of Puerto Rico (except to the extent relating to services provided by the Contractor to PREPA);
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b)
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For the reasons above stated, Cobra Acquisitions LLC is not required to file Personal Property Tax in the Commonwealth of Puerto Rico as established in Article 6.03 of Act 83 of August 1991 and therefore a Personal Property Tax file does not exist for Cobra Acquisitions LLC in the MRCC.
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7)
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Certification, issued by the Department of Labor and Human Resources of Puerto Rico, assuring that Cobra Acquisitions LLC has paid to the Department of Labor and Human Resources of Puerto Rico its employees' contribution, in accordance with the Puerto Rico Employment Security Act (unemployment, temporary disability or sickness, or social security
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8)
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Certification, issued by the Child Support Administration, assuring that the Cobra Acquisitions LLC is in compliance with the withholdings required by ASUME.
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9)
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Copy of the Merchant’s Registration Certificate.
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10)
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Contractor shall submit a sworn statement whereby it shall inform whether it or any president, vice-president, director, executive director or member of a board of officials or board of directors, or persons that or any person performing equivalent functions for Contractor has been convicted of or has pled guilty to any of the crimes listed in Article 6.8 of Act 8-2017, as amended, known as the Act for the Administration and Transformation of Human Resources in the Government of Puerto Rico or any of the crimes included in
Act 2-2018, Anti-Corruption Code for a New Puerto Rico. Contractor agrees to comply with the provisions of Act No. 2-2018, as the same may be amended from time to time, which establishes the Anti-Corruption Code for a New Puerto Rico. The Contractor hereby certifies that it does not represent particular interests in cases or matters that imply a conflicts of interest, or of public policy, between the executive agency and the particular interests it represents. |
11)
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Compliance with Act No. 1 of Governmental Ethics: The Contractor will certify that it is in compliance with Act 1 of January 3, 2012, as amended, known as the Ethics Act of the Government of Puerto Rico, which, stipulates that, no employee or executive of the Contractor, nor any member of his/he immediate family (spouse, dependent children or other members of his/her household or any individual whose financial affairs are under the control of the employee) shall have any direct or indirect pecuniary interest in the services to be rendered under this Contract, except as may be expressly authorized by the Governor of Puerto Rico in consultation with the Secretary of Treasury and the Secretary of Justice of the Government. 3 L.P.R.A. § 8611 et seq.;
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12)
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Social Security and Income Tax Retentions: In compliance with Executive Order 1991
OE- 24; and C.F.R. Part 404 et. Seq., the Contractor will be responsible for rendering and paying the Federal Social Security and Income Tax Contributions for any amount owed as a result of the income, from this Contract. Executive Order 1991OE24; C.F.R. Part 404 et. Seq. |
13)
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Law 168-2000: Law for the Strengthening of the Family Support and Livelihood of Elderly People: The Contractor will certify that if there is any Judicial or Administrative Order demanding payment or any economic support regarding law number 168-2000 as amended the same is current and in all aspects in compliance. Act 168-2000 “Law for the Strengthening of the Family Support and Livelihood of Elderly People” in Spanish: “Ley para el Fortalecimiento del Apoyo Familiar y Sustento de Personas de Edad Avanzada”, 3 L.P.R.A. §8611 et seq.
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14)
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Law Num. 127, May 31, 2004: Contract Registration in the Comptroller’s Office of Puerto Rico Act: Payment for services object of this Contract will not be made until this Contract is properly registered in the Office of the Comptroller of the Government of Puerto Rico pursuant to Law Number 18 of October 30, 1975, as amended.
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15)
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Dispensation: Any and all necessary dispensations have been obtained from any government entity and that said dispensations shall become part of the contracting record.
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16)
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The Contractor acknowledges and accepts that it is knowledgeable of the rules of ethics of his/her profession and assumes responsibility for his/her own actions.
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17)
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Consequences of Non-Compliance: The Contractor expressly agrees that the conditions outlined throughout Article 49 are essential requirements of this Contract; consequently, should any one of these representations, warrants, and certifications be incorrect, inaccurate or misleading, in whole or in part, and should such non-compliance not be cured within thirty (30) days, there shall be sufficient cause for PREPA to terminate this Contract.
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ARTICLE. 53
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Compliance with Applicable Federal Law, Regulations and Executive Orders
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A.
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Compliance with the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701-3708) as supplemented by Department of Labor regulations (29 CFR part 5).
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B.
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Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended)
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Contractor certifies that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352.
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C.
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Breach of Contract Terms
. Any violation or breach of terms of this Contract on the part of the Contractor or a subcontractor may, in accordance with the terms of this Contract, result in the
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D.
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Clean Air Act and the Federal Water Pollution Control Act
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The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., and the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation to PREPA and understands and agrees that PREPA will, in turn, report each violation as required to assure notification to the Government of Puerto Rico, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance.
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E.
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Changes
. At any time, and only through a written change order instruction, PREPA may make changes in the services or work to be performed within the general scope of this Contract. If such changes cause an increase or decrease in Contractor’s cost of, or time required for, performance of any services under this Contract, an equitable adjustment shall be made and this Contract shall be modified in writing accordingly, provided, however, that no changes shall be made to the scope of the Services that would render the costs incurred in the performance of this Contract unallowable or not allocable under, or outside the scope or not reasonable for the completion of, Federal grant awards from FEMA or any other U.S. federal agency.
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F.
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Sufficiency of Funds
. The Contractor acknowledges that Federal assistance awarded by U.S. federal agencies will be used, in part, to fund this Contract. However, any failure of PREPA to secure this funding (except due to the Contractor’s sole fault), shall not relieve PREPA from its obligations of payment under this Contract.
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G.
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FEMA Disaster Assistance Survivor/Registrant Data
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(a)
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If the Contractor has access to Disaster Assistance Survivor/Registrant data or any other personally identifiable information, the Contractor shall comply with the provisions of the Terms and Conditions for Sharing FEMA Disaster Assistance
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(b)
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The Contractor shall indemnify, defend, and hold harmless PREPA and the Government of Puerto Rico for any and all costs associated with the defense of that litigation, including costs and attorneys’ fees, settlements, or adverse judgments arising from the Contractor’s failure to comply with the requirements under this contract.
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H.
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Costs.
All costs incurred by the Contractor in performance of this Contract must be in accord with the cost principles of 2 C.F.R. pt. 200, Subpart PREPA shall not be required to make payments to the Contractor for costs which are found to be contrary to the cost principles 2 C.F.R. pt. 200, Subpart E.
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I
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Financial Management System
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The Contractor’s financial management system shall provide for the following:
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(1)
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accurate, current and complete disclosure of the financial results of this Contract and any other contract, grant, program or other activity administered by the Contractor;
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(2)
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records adequately identifying the source and application of all Contractor funds and all funds administered by the Contractor which shall contain information pertaining to all contract and grant awards and authorizations, obligations, unobligated balances, assets, liabilities, outlays and income, and shall be segregated by contract or on a contract-by-contract basis;
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(3)
|
effective internal control structure over all funds, property and other assets, sufficient to allow the Contractor to adequately safeguard all such assets and shall ensure that they are used solely for authorized purposes;
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(4)
|
comparison of actual outlays with budgeted amounts for this Contract and for any other contract, grant, program or other activity administered by the Contractor;
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(5)
|
accounting records supported by source documentation;
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(6)
|
procedures to minimize elapsed time between any advance payment issued and the disbursement of such advance funds by the Contractor; and
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(7)
|
procedures consistent with the provisions of any applicable policies of the Federal Government and the Government of Puerto Rico and procedures for determining the reasonableness, allowability and allocability of costs under this Contract.
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J.
|
Penalties, Fines, and Disallowed Costs
.
If, as a result of any uncured violation of applicable law by Contractor, any U.S. Federal agency or the Government of Puerto Rico disallows or demands repayment for costs incurred in the performance of this Contract, or if any penalty is imposed due to an act or omission by the Contractor, the Contractor shall be solely responsible for such penalty, disallowed costs, or repayment demand, to the extent of its fault and/or responsibility, and shall reimburse PREPA in full within ten (10) days of receiving notice from PREPA of such penalty, disallowance, or repayment demand. Any monies paid by the Contractor pursuant to this provision shall not relieve the Contractor of liability to PREPA for damages sustained by PREPA by virtue of any other provision of this Contract.
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K.
|
Debarment, Suspension, and Ineligibility
.
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(1)
|
The Contractor represents and warrants that the Contractor, it principals, and affiliates have not been debarred, suspended, or placed in ineligibility status under the provisions of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000 (government debarment and suspension regulations). The Contractor represents and warrants that it will not enter into any contracts or subcontracts with any individual or entity which has been debarred, suspended or deemed ineligible under those provisions. During the term of this Contract, the Contractor will periodically review SAM.gov and local notices to verify the continued accuracy of this representation. The Contractor shall require all subcontractors at every tier to comply with this requirement.
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(2)
|
This certification is a material representation of fact relied upon by PREPA. If it is later determined that the Contractor did not comply with 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000, in addition to remedies available to the Government of Puerto Rico and PREPA, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.
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L.
|
Reporting Requirements
. The Contractor shall complete and submit all reports, in such form and according to such schedule, as may be required by PREPA.
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M.
|
Review of laws
.
The Contractor certifies that it will access online and read each law that is cited in the aforementioned clauses and that, in the event it cannot access the online version, it will notify PREPA in order to obtain printed copies of the laws. Not requiring a printed copy of the laws to PREPA will be evidence that the Contractor was able to find it online and read it as required.
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N.
|
Notice of Federal Emergency Management Agency (FEMA) Reporting Requirements and Regulations
:
|
(1)
|
PREPA is using Federal grant funding awarded or administered by FEMA to the Government of Puerto Rico and/or PREPA to pay, in full, for the costs incurred under this Contract. As a condition of FEMA funding under major disaster declaration FEMA-4339-DR-PR, FEMA requires the Government of Puerto Rico and PREPA to provide various financial and performance reporting. The Contractor agrees to provide all information, documentation, and reports necessary to satisfy these reporting requirements. Failure by the Contractor to provide information necessary to satisfy these reporting requirements may result in loss of Federal funding for this Contract, and such failure shall be a material breach of this Contract.
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(2)
|
Applicable Regulations and Policy. Applicable regulations, FEMA policy, and other sources setting forth these reporting requirements include, but are not limited to:
|
(i)
|
2 C.F.R. § 327 (Financial Reporting);
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(ii)
|
2 C.F.R. § 200.328 (Monitoring and Reporting Program Performance);
|
(iii)
|
Performance and financial reporting requirements set forth in 2 C.F.R. Part 206.
|
O.
|
Access to Records
.
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P.
|
Retention requirements for records.
|
1)
|
If any litigation, claim, or audit is started before the expiration of the 3-year period, the records must be retained until all litigation, claims, or audit findings involving the records have been resolved and final action taken.
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2)
|
When PREPA is notified in writing by the Federal awarding agency, cognizant agency for audit, oversight agency for audit, cognizant agency for indirect costs, or pass-through entity to extend the retention period and PREPA has provided written notice of such extension to Contractor.
|
3)
|
Records for real property and equipment acquired with Federal funds must be retained for 3 years after final disposition.
|
4)
|
When records are transferred to or maintained by the Federal awarding agency or pass-through entity, the 3- year retention requirement is not applicable to the non-Federal entity.
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5)
|
Records for program income transactions after the period of performance. In some cases recipients must report program income after the period of performance. Where there is such a requirement, the retention period for the records pertaining to the earning of the program income starts from the end of the non-Federal entity’s fiscal year in which the program income is earned.
|
6)
|
Indirect cost rate proposals and cost allocations plans. This paragraph applies to the following types of documents and their supporting records: in- direct cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates).
|
7)
|
If submitted for negotiation.
If the proposal, plan, or other computation is required to be submitted to the Federal government (or to the pass-through entity) to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts from the date of such submission.
|
8)
|
If not submitted for negotiation.
If the proposal, plan, or other computation is not required to be submitted to the Federal government (or to the pass-through entity) for negotiation purposes, then the 3-year retention period for the proposal, plan, or
|
Q.
|
Program Fraud and False or Fraudulent Statements or Related Acts
.
The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor’s actions pertaining to this Contract.
|
R.
|
Procurement of Recovered Materials.
In the performance of this Contract, the Contractor shall make maximum use of products containing recovered materials that are Environmental Protection Agency (“EPA”)- designated items unless the product cannot be acquired—(i) competitively within a timeframe providing for compliance with the Contract performance schedule; (ii) meeting Contract performance requirements; or (iii) at a reasonable price. Information about this requirement, along with the list of EPA-designated items, is available at EPA’s Comprehensive Procurement Guidelines web site,
https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program
.-
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S.
|
Energy Efficiency
.
The Contractor agrees to comply with the requirements of 42 U.S.C. § 6201, which contain policies relating to energy efficiency that are defined in the Government of Puerto Rico’s energy conservation plan issued in compliance with said statute.
|
T.
|
Compliance with the Davis-Bacon Act
|
U.
|
Compliance with the Copeland Anti-Kickback Act (applicable to all contracts subject to the Davis-Bacon Act)
.
|
V.
|
Equal Opportunity
.
|
W.
|
Age Discrimination Act of 1975
. The Contractor shall comply with the provisions of the Age Discrimination Act of 1975. No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving federal financial assistance.
|
X.
|
Americans with Disabilities Act
.
The Contractor shall comply with the appropriate areas of the Americans with Disabilities Act of 1990, as enacted and from time to time amended, and any other applicable federal regulation. A signed, written certificate stating compliance with the Americans with Disabilities Act may be requested at any time during the term of this Contract.
|
Y.
|
Title VI of the Civil Rights Act of 1964
.
The Contractor shall comply with the provisions of Title VI of the Civil Rights Act of 1964. No person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
|
Z.
|
Section 504 of the Rehabilitation Act of 1973, as Amended
.
The Contractor agrees that no otherwise qualified individual with disabilities shall, solely by reason of his disability, be denied the benefits, or be subjected to discrimination including discrimination in employment, any program or activity that receives the benefits from the federal financial assistance.
|
AA.
|
Drug-Free Workplace
.
The Contractor shall maintain a drug-free work environment in accordance with the Drug-Free Workplace Act of 1988 (41 U.S.C. § 8101 et seq.), and implementing regulations at 2 C.F.R Part 3001.
|
AB.
|
Contracting with Small and Minority Businesses, Women’s Business Enterprises, and Labor Surplus Area Firms
.
|
(1)
|
Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
|
(2)
|
Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
|
(3)
|
Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises;
|
(4)
|
Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises;
|
(5)
|
Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and
|
(6)
|
Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (1) through (5) of this section.
|
AC.
|
Rights to Inventions Made Under a Contract
.
Unless otherwise provided by law, this Contract is subject to the Bayh-Dole Act, Pub. L. No. 96-517, as amended, and codified in
35 U.S.C. § 200
et seq.
, and the specific requirements governing the development, reporting, and disposition of rights to inventions and patents resulting from federal financial assistance awards located at 37 C.F.R. Part 401 and the standard patent rights clause located at
37 C.F.R. § 401.14
.
35 U.S.C. § 200
et seq.
|
AD.
|
Compliance with Laws, Regulation and Executive Orders
.
The Contractor acknowledges that FEMA financial assistance will be used to fund this Contract. The Contractor shall comply will all applicable Federal and Government of Puerto Rico law, regulations, executive orders, policies, procedures, and directives, including but not limited to all Federal Cost Principles set forth in 2 C.F.R. Part 200, and all applicable FEMA regulations in 44 C.F.R. Chapter I.
2 C.F.R. Part 200
.
|
AE.
|
Provisions Required by Law Deemed Inserted
.
Each and every provision required by law regulation, executive order, policy, procedure, directive, Federal grant award or agreement,
|
AF.
|
Agreement to Execute Other Required Documents
.
Contractor and all subcontractors, by entering into the Contract, understand and agree that funding for the Services is provided under Federal programs with specific contracting requirements. To the extent any such requirement is not otherwise set forth herein, Contractor agrees to execute such amendments or further agreements as may be necessary to ensure that PREPA received Federal funding for this Contract so long as such amendments or further agreements do not impose additional material obligations on Contractor or eliminate benefits to which Contractor is entitled to under the Contract.
|
AG.
|
U.S. Department of Homeland Security Seal, Logo, and Flags
. The Contractor shall not use the U.S. Department of Homeland Security seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre- approval.
|
AH.
|
No Obligation by the Federal Government
. PREPA and the Contractor acknowledge and agree that the Federal Government is not a party to this Contract.
|
1)
|
Please submit for confirmation the Quantities and Billable Daily Rates in the table below that reflect the final negotiated price proposal
|
2)
|
Please submit a complete unit rate table by labor and equipment category to be incorporated in the final price proposal
Please refer to CONTRACTOR'S STANDARD EQUIPMENT AND TOOLING SCHEDULE
|
3)
|
Please submit a table of quantities for each labor and equipment category used to develop the 16 hour blended daily rates for "Skilled Linemen and Equipment," Transmission and Distribution as reflected in the final price proposal and confirmed in question (1) above
Please refer to CONTRACTOR'S STANDARD EQUIPMENT AND TOOLING SCHEDULE
|
4)
|
Please include any notes or special assumptions (e.g., minimum equipment hours or deviations from a 16-hour assumption) required for PREPA to compute and derive from the data provided in (2) and (3) the final blended rates for "Skilled Linemen and Equipment," Transmission and Distribution
Please refer to CONTRACTOR'S STANDARD EQUIPMENT AND TOOLING SCHEDULE
|
Labor/Unit
|
Work Unit Per Hour
|
Construction Cost Factor
|
Total Unit Price Per Hour
|
General Foreman
|
$55
|
2.59
|
$142.45
|
Foreman
|
$53
|
2.51
|
$133.03
|
Transmission Lineman
|
$50
|
2.66
|
$133.00
|
Distribution Lineman
|
$50
|
2.30
|
$115.00
|
Heavy Equipment Operator
|
$46
|
2.50
|
$115.00
|
Winch Truck Operator
|
$35
|
2.25
|
$78.75
|
Ground-man
|
$24
|
2.89
|
$69.36
|
Apprentice
|
$30
|
2.90
|
$87.60
|
•
|
Regular Workings days are 40 hours per week
|
•
|
1.5x for Overtime (OT) after regular working hours
|
•
|
2.0X Double-time (DT) for state or federal holiday working days
|
Equipment Type
|
Work Unit Per Hour
|
Construction Cost Factor
|
Total Unit Price Per Hour
|
Diggers
|
$50
|
1.00
|
$50
|
Bucket Trucks
|
$115
|
0.42
|
$67
|
Dozer Semi tractor
|
$60
|
2.41
|
$145
|
Haul Semi tractor
|
$40
|
2.85
|
$114
|
Heavy Lift Airlift
|
$4,600
|
2.17
|
$10,000
|
Aircraft MD 500
|
$1,000
|
2.25
|
$2,250
|
55'-60' 4x2/tracked
|
$72
|
1.20
|
$87
|
100-105 6x6/tracked
|
$90
|
3.17
|
$286
|
60 Ton Truck Cranes
|
$350
|
0.71
|
$250
|
30 Ton Truck Cranes
|
$130
|
0.84
|
$110
|
Pressure Diggers
|
$70
|
1.48
|
$118
|
Pullers (distribution/transmission)
|
$80
|
1.2/1.6
|
$96/$128
|
Transmission Conductor, Stringing Equipment
|
$25
|
4.00
|
$100
|
Distribution Conductor Stringing Equipment
|
$46
|
1.41
|
$65
|
Pick Up Trucks
|
$13
|
2.92
|
$38
|
Dump Trucks
|
$40
|
1.87
|
$75
|
Reel Trailer Small
|
$25
|
0.80
|
$20
|
Flat Bed Haul Truck
|
$30
|
3.50
|
$105
|
Standard Haul Truck
|
$90
|
0.81
|
$73
|
•
|
A minimum of 5 hours for the Aviation Equipment
|