Rd instruction 1942-a table of Contents




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(04-01-16) SPECIAL PN

RD Instruction 1942-A

Guide 27

(INSTRUCTION SHEET ONLY - NOT TO BE INCLUDED AS PART OF THE CONTRACT DOCUMENTS)

This Guide modifies selected documents published by the American Institute of Architects (AIA) to conform with USDA/Rural Development / Rural Housing Service (RHS) regulations and policy. The AIA documents, as modified by this Guide, may be used on RHS financed building construction projects such as those administered under this subpart. The AIA documents must be used in accordance with current copyright rules.
The need to witness the agreements will depend upon State and local requirements for validation of the document. Where appropriate, a copy of the resolution authorizing the individual to act on behalf of the firm or entity should be attached to the agreement.
Questions regarding the use of these documents should be referred to the RHS National Office Program Support Staff.
Attachments:
1. Attachment to AIA DOCUMENT B101-2007, Standard Form of Agreement Between Owner and Architect
2. Attachment to AIA DOCUMENT A701-1997, Instructions to Bidders.
3. Attachment to AIA DOCUMENT A101-2007, Standard Form of Agreement Between Owner and Contractor.
4. Attachment to AIA Document A201-2007, General Conditions of the Contract for Construction.
5. Attachment to AIA Document A121/CMc-2003,Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is also the Constructor.
6. Attachment to AIA Document A141-2004, Standard Form of Agreement Between the Owner and Design/Builder.
7. Community Facilities Design/Build or Construction Management Concurrence Checklist.


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(09-24-12) PN 458

RD Instruction 1942-A

Guide 27

Attachment 1

Page 1

ATTACHMENT TO AIA DOCUMENT B101-2007, Standard Form of Agreement Between Owner and Architect


The provisions of this Attachment shall delete, modify and supplement the provisions contained in the "Standard Form of Agreement Between Owner and Architect,” AIA Document B101-2007. The provisions contained in this Attachment will supersede any conflicting provisions of the AIA Document. The term "Agency,” as used in this Attachment, shall mean the United States of America, acting through the United States Department of Agriculture.
ARTICLE 3, SCOPE OF ARCHITECT’S BASIC SERVICES
Add the words "and concurrence by the Agency" after “Owner’s approval" in subparagraph 3.2.5, subparagraph 3.3.1 and subparagraph 3.4.1.
Delete subparagraphs 3.2.6 and 3.2.7

Add the following subparagraphs:


3.2.6. The Architect shall provide the Owner with the appropriate documentation showing the Schematic Design and the estimated Project cost to the Owner to seek the concurrence of the Agency. When the Owner has accepted and the Agency has concurred on the Schematic Design studies and estimated Project cost, the project Architect may be authorized to proceed with the Design Development Documents.
3.2.7. The Architect shall attend conferences with the Owner, representatives of the Agency and other interested parties as may be reasonably necessary.
3.4 CONSTRUCTION DOCUMENTS PHASE SERVICES
3.4.6 The Architect shall certify in writing, to the best of the Architect's knowledge, information and belief, that the Drawings and Specifications are in conformance with the applicable development standard, as defined in Agency regulations furnished by the Owner under subparagraph 5.1.
3.4.7 Prior to advertisement for bids, the Architect shall provide_____sets of Construction Documents for use by the Owner, the Agency and the appropriate Federal, State and local agencies from whom approval of the Project must be obtained. The reproduction cost of such Construction Documents shall be included in the compensation paid to the Architect, not withstanding subparagraph 11.8. The Owner shall obtain Agency concurrence with the Construction Documents, estimated Project costs, and authorization to proceed in writing prior to advertisement for bids.
(09-24-12) PN 458

RD Instruction 1942-A

Guide 27

Attachment 1

Page 2

3.5 BIDDING OR NEGOTIATING PHASE SERVICES


Add the following subparagraph to 3.5.2.2:
.6 furnishing additional copies of the Construction Documents as requested by the prospective bidders, and other interested parties, and may charge them a reasonable cost for such copies.
3.6 CONSTRUCTION PHASE SERVICES
Add the following to subparagraph 3.6.1.1 after the words "Contract for Construction": "and the conditions of RD Instruction 1942-A, Guide 27, Attachment 4".

Delete the first sentence of subparagraph 3.6.1.2 and substitute the following:


3.6.1.2 The Architect shall be a representative of and shall advise and consult with the Owner during construction until final payment to the Contractor is paid, and at the Owner's direction during the period of correction of the Work described in the Contract for Construction. The Architect shall furnish architectural services and consultations necessary to correct minor construction defects encountered during such correction period. The Architect shall assist the Owner in performing a review of the Project during the 11th month after the date of substantial completion. Such services shall be furnished without additional charge except for travel and subsistence costs.
Delete the following words from subparagraph 3.6.1.3 after the word, "terminates": "on the date the Architect issues the final Certificate for Payment" and substitute the words "at the expiration of

the period of correction of the Work described in the Contract for Construction."


Add the following subparagraph to paragraph 3.6.1:
3.6.1.4 Upon award of the construction contract, the Architect shall furnish to the Owner _______ sets of Construction Contract Documents for execution. The costs of these sets shall be included in the compensation to the Architect notwithstanding subparagraph 11.8.
3.6.1.5 The Architect shall participate in the Preconstruction Conference and shall advise and consult with the Owner and the Agency.

RD Instruction 1942-A

Guide 27

Attachment 1

Page 3

Add to subparagraph 3.6.2.1 following the first sentence, “Such visits to the site shall be documented in writing on inspection report forms acceptable to the Owner and the Agency. Copies shall be furnished to the Owner, Contractor and the Agency.”


Add the following subparagraph to paragraph 3.6.2:
3.6.2.6 The Architect shall advise the Owner and the Agency of required tests, inspections and test results; shall furnish coordination of such tests and inspections; and shall advise the Owner and the Agency of the results of same. Copies of tests results shall be furnished upon request to the Owner, and the Agency.
Add the following subparagraph to paragraph 3.6.3:
3.6.3.4 The Architect shall obtain Agency concurrence on all Certificates of Payment before payment is made.
Modify subparagraph 3.6.5.1 as follows: Add the following to the end of the subparagraph: “Preparation of Change Orders which do not substantially affect the Project shall be included in the compensation computed in paragraph 11.1. The Owner, with the assistance of the Architect, shall obtain Agency concurrence in writing for all change orders prior to the performance of the Work.”
Delete subparagraphs 3.6.6.1, and substitute the following:
3.6.6.1 The Architect shall conduct an inspection prior to the issuance of the Certificate of Substantial Completion and shall submit a written report of work to be completed to the Owner, the Agency and the Contractor prior to final acceptance. The Architect shall notify the Agency about inspection allowing reasonable time for the Agency's representative to attend. Such services shall be coordinated with the Agency. Prior to submitting the final Certificate for Payment, the Architect shall; 1) conduct an inspection to determine compliance with the requirements of the Contract Documents, and 2) receive and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract Documents and assembled by the Contractor.

(09-24-12) PN 458

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Guide 27


Attachment 1

Page 4

ARTICLE 4, ADDITIONAL SERVICES
Delete items .3 and .6 from paragraph 4.3.2.
Insert the word “Architect” under the heading “Responsibility” for line items 4.1.11, 4.1.12, and 4.1.15 in the chart.
Add the following subparagraphs to paragraph 4.2 below the chart:
4.2.1 The Architect shall provide a cost estimate based on Construction Contract Documents. The estimate shall show a breakdown of the project cost in accordance with Rural Development requirements and procedures.
4.2.2 The selection and compensation of the Project Representative, if required, shall be concurred in by the Agency.
4.2.3 _____ sets of Record Drawings shall be provided to the Owner. The costs of these sets shall be included in the compensation to the Architect not withstanding Subparagraph 11.8.

ARTICLE 5, OWNER’S RESPONSIBILITIES


Add the following subparagraph to Article 5:
5.13 Owner shall provide Agency design and construction document regulations and guides to the Architect, upon request. The Owner shall provide information on requirements and procedures of the Agency.

ARTICLE 6, COST OF THE WORK


Add the following paragraph to Article 6:
6.8 The Architect shall consult with the Agency Architect or Engineer about the Agency’s requirements and procedures.

RD Instruction 1942-A

Guide 27

Attachment 1

Page 5

ARTICLE 8, CLAIMS AND DISPUTES


Delete the words "unless the parties mutually agree otherwise" and substitute the words "if the parties mutually agree" in the first sentence of subparagraph 8.3.1.

ARTICLE 9, TERMINATION OR SUSPENSION


Delete the second sentence in subparagraph 9.2 and substitute the following:
When the Project is resumed, the Architect's compensation may be equitably adjusted, as mutually agreed, to provide for expenses incurred in the interruption and resumption of the Architect's services.
Insert the words "as mutually agreed" after "Termination Expenses" in subparagraph 9.7.

ARTICLE 10, MISCELLANEOUS PROVISIONS


Add the following subparagraphs:
10.9 This Agreement and any amendments to this Agreement shall not be in full force and effect until concurred with in writing by the Agency State Director or the State Director's delegate. Such concurrence shall be evidenced by the signature of such a representative of the Agency in the space provided at the end of this Agreement.
10.10 If applicable, the Architect shall comply with section 319 of Public Law 101-121, as supplemented by the Department of Agriculture regulations (7 CFR part 3018). This statute pertains to restrictions on lobbying and applies to the recipients of contracts and subcontracts that exceed $100,000 at any tier under a Federal loan that exceeds $150,000 or a Federal grant that exceeds $100,000. If applicable, the Architect must complete a certification form on lobbying activities related to a specific Federal loan or grant that is a funding source for this Contract. The certification and disclosure forms shall be provided by the Owner.
(09-24-12) PN 458

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Guide 27

Attachment 1

Page 6
10.11: The Architect agrees to abide by the requirements under Executive Order 12549, which pertains to the debarment or suspension of a person from participating in a Federal program or activity. If the total compensation described in Article 1.5 exceeds $25,000, the Architect shall complete the relevant certification form provided by the Owner.

ARTICLE 11, COMPENSATION


Add the words "or representatives of the United States of America" after the words "Owner" in subparagraph 11.10.4.
Add the following subparagraph to paragraph 11.10:
11.10.5 The Architect shall provide a detailed cost estimate for Reimbursable Expenses as defined in subparagraph 11.8., which shall be attached and made a part of this Agreement. The cost estimate must be approved in writing by the Owner and shall be concurred with in writing by the Agency before the services are rendered. The billings for reimbursable services shall not exceed the budgeted amount without prior approval of the Owner with the concurrence of the Agency. The Agency may not concur in requests for payments which exceed the budgeted amount unless it is established that funds are available for such expenditures.

ARTICLE 12, SPECIAL TERMS AND CONDITIONS


Add the following subparagraph 12.1:
12.1 This Agreement is modified and supplemented by RD Instruction 1942-A, Guide 27, Attachment 1.
ARTICLE 13, SCOPE OF THE AGREEMENT
Delete the word "both" from the end of the second sentence in subparagraph 13.1 and conclude the sentence with "Owner, Architect and Agency".
SIGNATURE BLOCK:
Delete the signature block on page 18 of this Agreement and substitute the following:

RD Instruction 1942-A

Guide 27

Attachment 1

Page 7

IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in duplicate on the respective dates indicated below.


OWNER:
ATTEST: __________________________ By ________________________________
Type Name ________________________ Type Name _________________________
Title ____________________________ Title _____________________________
Date _____________________________ Date ______________________________
ARCHITECT:
ATTEST: __________________________ By ________________________________
Type Name ________________________ Type Name _________________________
Title ____________________________ Title _____________________________
Date _____________________________ Date ______________________________
The United States of America, as potential lender or insurer of funds to defray the costs of this agreement and without liability for any payments thereunder, hereby concurs in the form, content and the execution of this agreement.

U.S. Department of Agriculture

Rural Development

Rural Housing Service


By ________________________________
Type Name _________________________
Title _____________________________
Date ______________________________
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(09-24-12) PN 458


RD Instruction 1942-A

Guide 27


Attachment 2

Page 1


ATTACHMENT TO AIA DOCUMENT A701-1997, Instructions to Bidders
The provisions of this Attachment shall delete, modify and supplement the provisions contained in the "Instructions to Bidders,” AIA Document A701-1997 Edition. The provisions contained in this Attachment will supersede any conflicting provisions of the AIA Document. The term "Agency,” as used in this Attachment, shall mean the United States of America, acting through the United States Department of Agriculture.

ARTICLE 2, BIDDER'S REPRESENTATIONS


2.1 Add the following subparagraph to paragraph 2.1:
2.1.5 This Bid has been arrived at independently, without consultation, communication, or agreement as to any matter relating to this Bid, with any other Bidder or with any competitor.

ARTICLE 4, BIDDING PROCEDURES


4.1.1 Add the following sentence to subparagraph 4.1.1:
Only one copy of the Bid is to be submitted.
4.2.1 Delete subparagraph 4.2.1 and substitute the following:
4.2.1 Each Bid must be accompanied by a Bid Bond payable to the Owner for five percent of the total amount of the Bid.
4.2.2 Delete Subparagraph 4.2.2 and substitute the following:
4.2.2 The Bid Bond shall be written on a form identical to that included in the Bidding Documents, and the attorney-in-fact who executes the Bid Bond on behalf of the surety shall affix to the Bid Bond a certified and current copy of the power of attorney.
4.2.3 Add the words "payment and performance" before the word "bonds"; and add

the following to subparagraph 4.2.3:


As soon as the Bid prices have been compared, the Owner will return the Bid Bonds of all except the three lowest responsible Bidders. When the Agreement is executed, the Bid Bonds of the two remaining unsuccessful Bidders will be returned.

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Attachment 2

Page 2


4.2 Add the following subparagraph to paragraph 4.2:
4.2.4 If a Bidder refuses to execute the Agreement or obtain the Performance and Payment Bonds within the agreed time, the Owner may consider the Bidder in default, in which case the Bid Bond accompanying the Bid shall become the property of the Owner.
4.3 Add the following subparagraphs to paragraph 4.3:
4.3.5 All applicable laws, ordinances, and the rules and regulations of all authorities having jurisdiction over construction of the Project, shall apply to the Contract throughout.
4.3.6 The Bidder agrees to abide by the requirements of Executive Order 11246, specifically including the provisions of the Equal Opportunity Clause and the Standard Federal Equal Employment Construction Contract Specifications set forth in the Supplementary Conditions.
4.3.7 The Bidder agrees to abide by the requirements of section 319 of Public Law 101-121, which pertains to lobbying activities and applies to recipients of contracts or subcontracts that exceed $100,000 at any tier under a Federal loan that exceeds $150,000 or a Federal grant that exceeds $100,000. Each Bid shall be accompanied by a completed lobbying certification form identical to that included in the Bidding Documents.
4.3.8 The Bidder agrees to abide by the requirements under 7 C.F.R. part 3017, which pertains to the debarment or suspension of a person from participating in a Federal program or activity. Each Bid exceeding $25,000 shall be accompanied by a relevant completed certification form identical to that included in the Bidding Documents.

4.4.1 Delete subparagraph 4.4.1 and substitute the following:


4.4.1 No Bidder may withdraw, modify or cancel a Bid within 60 calendar days after the actual date of the opening thereof. Should there be reasons why the Contract cannot be awarded within the specified period, the time may be extended by mutual agreement between the Owner and the Bidder, and the concurrence of the Agency.
4.4.4 Delete the words ", if required," from Subparagraph 4.4.4.

RD Instruction 1942-A

Guide 27

Attachment 2

Page 3

ARTICLE 5, CONSIDERATION OF BIDS


5.3.2 Delete subparagraph 5.3.2 and substitute the following:
5.3.2 The Owner shall have the right to accept Alternates in the sequence or combinations listed and to determine the low Bidder on the basis of the sum of the Base Bid and the Alternates accepted.
ARTICLE 7, PERFORMANCE BOND AND PAYMENT BOND
7.1.1 Delete subparagraph 7.1.1 and substitute the following:
7.1.1 Prior to execution of the Contract, the Bidder shall furnish Bonds covering the faithful performance of the Contract and the payment of all obligations arising thereunder. Both Bonds shall be separately written, each in the amount of the Contract Sum. The cost shall be included in the Bid.
7.1.2 Delete subparagraph 7.1.2 and substitute the following:
7.1.2 Surety companies executing Bonds must hold a certificate of authority as a acceptable surety on Federal Bonds as listed in Treasury Circular 570, as amended, and be authorized to transact business in the State where the Project is located.
7.1.3 Delete subparagraph 7.1.3.
7.2.1 Delete subparagraph 7.2.1 and substitute the following:
7.2.1 The Bidder to whom the Contract is awarded will be required to execute the Agreement and obtain Performance and Payment Bonds within ten (10) calendar days from the date when the Notice of Award is delivered to the Bidder. The Notice shall be accompanied by the necessary Agreement and Bond forms.
7.2.2 Delete subparagraph 7.2.2 and substitute the following:
7.2.2 The Bonds shall be written on forms identical to those included in the Bidding Documents.

(Note: Any additional provisions that are necessary to remain effective after execution of the Contract for Construction will be inserted here and continue in the same format.)


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(08-26-98) PN 296

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Guide 27

Attachment 3

Page 1

ATTACHMENT TO AIA DOCUMENT A101-2007, Standard Form of Agreement Between Owner and Contractor


The provisions of this Attachment shall delete, modify and supplement the provisions contained in the “Standard Form of Agreement Between Owner and Contractor,” AIA Document A101-2007 Edition. The provisions contained in this attachment shall supersede any conflicting provisions of the AIA Document.

ARTICLE 3, DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


Delete paragraph 3.1 and substitute the following:
3.1 The date of commencement shall be contained in the Notice to Proceed.
Add the following to paragraph 3.3:
If the work is not substantially complete on or before this date, or within this period of time, or extension thereof granted by the Owner, damage will be sustained by the Owner and that it is and will be impracticable and extremely difficult to fix the actual damage which the Owner will sustain in the event of and by reason of such delays. The Contractor shall pay to the Owner liquidated damages in the sum of $ _____________ for each calendar day of delay. Any sums that may be due the Owner as liquidated damages may be deducted from any monies due or to become due the Contractor under the Contract or may be collected from the Contractor's surety.

ARTICLE 5, PAYMENTS


Insert "ten" and "10" in the appropriate spaces in clauses 5.1.6.1 and subparagraph 5.1.6.2.
Delete the last sentence of clause 5.1.6.1.
Delete the following from clause 5.1.6.2:
(or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing)

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Attachment 3

Page 2


Insert the following sentences in subparagraph 5.1.8:
The amount retained shall be 10% of the value of Work until 50% of the Work has been completed. At 50% completion, further partial payments shall be made in full to the Contractor and no additional amounts may be retained unless the Architect certifies that the Work is not proceeding satisfactorily, but amounts previously retained shall not be paid to the Contractor. At 50% completion or any time thereafter when the progress of the Work is not satisfactory, additional amounts may be retained but in no event shall the total retainage be more than 10% of the value of Work completed.

ARTICLE 8, MISCELLANEOUS PROVISIONS


Add the following subparagraph to paragraph 8.6:
8.6.1 This Agreement shall not become effective until concurred in writing by the Agency. Such concurrence shall be evidences by the signature of a duly authorized representative of the Agency in the space provided at the end of this Attachment to the Agreement. The concurrence so evidenced by the Agency shall in no way commit the Agency to render financial assistance to the Owner and is without liability to the Agency for any payment thereunder, but in the event such assistance is provided, the concurrence shall signify the provisions of this Agreement are consistent with Agency requirements.

ARTICLE 9, ENUMERATION OF CONTRACT DOCUMENTS


The following Documents should be referenced, if applicable:
Subparagraph 9.1.3:
Attachment to the Standard Form of Agreement Between Owner

and Contractor (this Attachment)

General Conditions of the Contract for Construction, AIA

A201-2007

Attachment to the General Conditions of the Contract for

Construction (RD Instruction 1942-A, Guide 27, Attachment

4)


Special Conditions
RD Instruction 1942-A

Guide 27


Attachment 3

Page 3


Subparagraph 9.1.7:
Invitation for Bids (Form RD 1924-5)

Instructions to Bidders, AIA A701-1997

Attachment to the Instructions to Bidders (RD Instruction

1924-A, Guide 27, Attachment 2)

Bid Form


Bid Bond

Compliance Statement (Form RD 400-6)

Payment Bond

Performance Bond

Certification Regarding Debarment, Suspension,

Ineligibility and Voluntary Exclusion - Lower Tier

Covered Transactions (Form AD 1048)

Disclosure of Lobbying Activities (SF-LLL)

Certification for Contracts, Grants and Loans (RD

Instruction 1940-Q, Exhibit A-1)

Delete the signature block on page 7 of this Agreement, and substitute the block on the following page:

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Attachment 3

Page 4

IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in duplicate on the respective dates indicated below:

OWNER:
ATTEST: _____________________ By _______________________________


Type Name ___________________ Type Name ________________________
Title _______________________ Title ____________________________
Date ________________________ Date _____________________________

CONTRACTOR:


ATTEST: _____________________ By _______________________________
Type Name ___________________ Type Name ________________________
Title _______________________ Title ____________________________
Date ________________________ Date _____________________________

AGENCY CONCURRENCE:

By ________________________________
Type Name _________________________
Title _____________________________
Date ______________________________

The concurrence so evidenced by the Agency shall in no way commit the Agency to render financial assistance to the Owner and is without liability to the Agency for any payment hereunder, but in the event such assistance is provided, the concurrence shall signify the provisions of this Agreement are consistent with Agency requirements.


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RD Instruction 1942-A

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Attachment 4

Page 1

ATTACHMENT TO AIA DOCUMENT A201-2007, General Conditions of the Contract for Construction
The provisions of this attachment shall delete, modify and supplement the provisions contained in the "General Conditions of the Contract for Construction,” AIA Document A201-2007 Edition. The provisions contained in this attachment will supersede any conflicting provisions of the AIA Document. The term "Agency,” as used in this Attachment, shall mean the United States of America, acting through the United States Department of Agriculture.

ARTICLE 1, GENERAL PROVISIONS


Add the following subparagraph:
1.2.4 Concurrence of the Contract by the Agency is required before it is effective.

ARTICLE 2, OWNER


Delete subparagraph 2.2.5 and substitute the following:
2.2.5 The Contractor will be furnished, free of charge, ________ copies of the Drawings and Projects Manuals necessary for execution of the Work. Additional copies will be available from the Architect at the cost of reproduction and handling.

ARTICLE 4, ARCHITECT


Add the following to subparagraph 4.1.1:
The term "Architect" means the Architect, or the Engineer when the nature of the work is within the authority granted engineers by the State licensure law, or an authorized representative of the Architect or Engineer.

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Attachment 4

Page 2

ARTICLE 5, SUBCONTRACTORS
Add the following to subparagraph 5.2.2:
The Contractor shall not contract with any party who is suspended or debarred by any Federal government agency from participating in Federally assisted construction projects
or to whom the Owner or the Architect has made reasonable and timely objection.

ARTICLE 7, CHANGES IN THE WORK


Delete the words ", Construction Change Directive" from subparagraph 7.1.1.
Insert the words ", Agency " after the word "Owner,” and delete the words "; a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor" in subparagraph 7.1.2.
Delete the words "Construction Change Directive" from subparagraph 7.1.3.
Delete subparagraph 7.2.1 and substitute the following:
7.2.1 A Change Order is a written order to the Contractor utilizing Form RD 1924-7, "Contract Change Order," or AIA G-701 signed by the Owner, Architect, Contractor, and the Agency representative. It is issued after the execution of the Contract, authorizing a change in the Work or an adjustment in the Contract Sum or the Contract Time. The Contract Sum and the Contract Time may be changed only by Change Order. The Contractor's signing of a Change Order indicates complete agreement therein.
Add subparagraph 7.2.2:
7.2.2 Methods used in determining adjustments to the Contract Sum may include any of the following:
.1 Mutual acceptance of a lump sum properly

itemized and supported by sufficient

substantiating data to permit evaluating.
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Attachment 4

Page 3

.2 Unit prices stated in the Contract Documents

or subsequently agreed upon.


Add the following sentence to paragraph 7.3: “A Construction Change Directive may be used only for a change in response to an emergency as described in paragraph 10.4.

ARTICLE 8, TIME


Add the following subparagraphs:
8.2.4 The Notice to Proceed shall be issued within twenty (20) calendar days of the execution of the Agreement by the Owner. Should there be reasons why the Notice to Proceed cannot be issued within such period, the time may be extended by mutual agreement of the Owner and Contractor, with the concurrence of the Agency. If the Notice to Proceed has not been issued within the twenty (20) calendar day period or within the period mutually agreed, the Contractor may terminate the Agreement without further liability on the part of either party.
8.3.4 As outlined in Article 3 of the Agreement, the Contractor agrees to pay liquidated damages to the Owner for each calendar day the Contractor shall be in default.

ARTICLE 9, PAYMENTS AND COMPLETION


Delete clause 9.3.1.1 and substitute the following:
9.3.1.1 Work performed and materials supplied under a Change Order may be included for payment only after the Change Order has been approved by all appropriate parties, including the Agency.
Add the words ", using AIA Document 702, 'Application and Certificate for Payment' or Form RD 1924-18, 'Partial Payment Estimate'," after "Certificate for Payment" in subparagraph 9.4.1.

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Attachment 4

Page 4

Add the following subparagraph:
9.6.8 No progress payments will be made that deplete the retainage, nor place in escrow any funds that are required for retainage, nor invest the retainage for the benefit of the Contractor. Retainage will not be adjusted until after construction is substantially complete.
Replace the word "seven" with the words "fifteen (15)" in the first sentence , third line of subparagraph 9.7.
Delete subparagraph 9.8.5, after the first sentence, and substitute the following:
9.8.5 When the Work has been substantially completed, except for Work which cannot be completed because of weather conditions, lack of materials or other reasons, which, in the judgment of the Owner, are valid reasons for non-completion, the Owner may make additional payments, retaining at all times an amount sufficient to cover the estimated cost of the Work still to be completed. Provide a copy of the Certificate to the Agency.
Delete subparagraphs 9.9.1 through 9.9.3 and substitute the following:
9.9.1 The Contractor agrees to the use and occupancy of a portion or unit of the Project before formal acceptance by the Owner under the following conditions:
.1 A “Certificate of Substantial Completion” shall be prepared and executed as provided in subparagraph 9.8.4, except that when, in the opinion of the Architect, the Contractor is chargeable with unwarranted delay in completing the Work or other Contract requirements, the signature of the Contractor will not be required. The Certificate of Substantial Completion shall be accompanied by a written endorsement of the Contractor's insurance carrier and surety permitting occupancy by the Owner during the remaining period of the Project Work. Occupancy and use by the Owner shall not commence until authorized by public authorities having jurisdiction over the Work.

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Attachment 4

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.2 Occupancy by the Owner shall not be construed by the Contractor as being an acceptance of that part of the Project to be occupied.


.3 The Contractor shall not be held responsible for any damage to the occupied part of the Project resulting from the Owner's occupancy.
.4 Occupancy by the Owner shall not be deemed to constitute a waiver of existing claims in behalf of the Owner or Contractor against each other.
.5 If the Project consists of more than one building, and one of the buildings is to be

occupied, the Owner, prior to occupancy of that building, shall secure permanent property insurance on the building to be occupied and necessary permits which may be required for use and occupancy.


9.9.2 With the exception of clause 9.9.1.5, use and occupancy by the Owner prior to Project acceptance does not relieve the Contractor of responsibility to maintain all insurance and bonds required of the Contractor under the Contract Documents until the Project is completed and accepted by the Owner.
Delete the second and third sentences of subparagraph 9.10.2.

ARTICLE 11, INSURANCE AND BONDS


Replace the words "the Contract Documents" with the words "subparagraph 11.1.5" in the first sentence of subparagraph 11.1.2.
Add the following subparagraph:
11.1.5. Insurance shall be:
.1 Written with a limit of liability of not less than $500,000 for all damages arising out of bodily injury, including death, at any time resulting therefrom, sustained by any one person in any one accident; and a limit of liability of not less than $500,000 aggregate

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Attachment 4

Page 6

for any such damages sustained by two or more persons in any one accident. Insurance shall be written with a limit of liability of not less than $200,000 for all property damage sustained by any one person in any one accident; and a limit of liability of not less than $200,000 aggregate for any such damage sustained by two or more persons in any one accident, or
.2 Written with a combined bodily injury and damage liability of not less than $700,000 per occurrence; and with an aggregate of not less than $700,000 per occurrence.
Modify the first sentence of subparagraph 11.3.1 as follows:
11.3.1 Delete “Unless otherwise provided, the Owner” and substitute “The Contractor”.
Add the following sentences to the end of subparagraph 11.3.1
The policy shall name as the insured the Contractor and the Owner. If the Owner is damaged by the failure of the Contractor to purchase and maintain such insurance without so notifying the Owner in writing, then the Contractor shall bear all reasonable costs attributable thereto.
Insert the word "Owner" after the words "protect the interests of the" in the second sentence of subparagraph 11.3.1.2.
Add the following sentence to the end of subparagraph 11.3.6:
The provisions of this subparagraph shall apply to the Contractor if the Contractor purchases and maintains said insurance coverage.
Delete subparagraph 11.3.7 in its entirety.

RD Instruction 1942-A

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Attachment 4

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Delete subparagraph 11.4.1 and substitute the following:


11.4.1 The Contractor shall furnish the Owner bonds covering faithful performance of the Contract and payment of obligations arising thereunder within ten (10) calendar days after receipt of the Notice of Award. The surety company executing the bonds must hold a certificate of authority as an acceptable surety on Federal bonds as listed in Treasury Circular 570, and be authorized to transact business in the State where the Project is located. The bonds (using the forms included in the Bidding Documents) shall each be equal to the amount of the Contract Sum. The cost of these bonds shall be included in the Contract Sum
Add the following subparagraphs:
11.4.1.1 The Contractor shall require the attorney-in-fact who executes the required bonds on behalf of the surety to affix thereto a certified and current power of attorney.
11.4.1.2 If at any time a surety on any such bond is declared bankrupt or loses its right to do business in the State in which the work is to be performed or is removed from the list of surety companies accepted on Federal Bonds, the Contractor shall within ten (10) calendar days after notice from the Owner to do so, substitute an acceptable bond in such form and sum and signed by such other surety or sureties as may be satisfactory to the Owner. The premiums of such bond shall be paid by any Contractor. No further payment shall be deemed due nor shall be made until the new surety or sureties shall have furnished an acceptable bond to the Owner.

ARTICLE 13, MISCELLANEOUS PROVISIONS


Add the following paragraphs:
13.8 LANDS AND RIGHTS-OF WAY
13.8.1 Prior to the start of construction, the Owner shall obtain all lands and rights-of-way necessary for the execution and completion of work to be performed under this contract.

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13.9 EQUAL OPPORTUNITY REQUIREMENTS
Non-discrimination in Employment by Federally Assisted Construction Contractors, by Executive Order 11246.
13.9.1 This section summarizes Executive Order 11246, which prohibits employment discrimination and requires employers holding non-exempt Federal contracts and subcontracts and federally-assisted construction contracts and subcontracts in excess of $10,000 to take affirmative action to ensure equal employment opportunity without regard to race, color, religion, sex, or national origin. The Executive Order requires, as a condition for the approval of any federally assisted construction contract, that the applicant incorporate nondiscrimination and affirmative action clauses into its non-exempt federally assisted construction contracts.
13.9.2 Executive Order 11246, is administered and enforced by the Office of Federal Contract Compliance Programs (OFCCP), an agency in the U.S. Department of Labor's Employment Standards Administration. OFCCP has issued regulations at 41 CFR chapter 60 implementing the Executive Order. The regulations at 41 CFR part 60-4 establish the procedures which the Agency, as an administering agency, must follow when making grants, contracts, loans, insurance or guarantees involving federally assisted construction which is not exempt from the requirements of Executive Order 11246. The regulations which apply to Federal or federally assisted construction contractors also are published at 41 CFR part 60-4.
13.9.3 OFCCP has established numerical goals for minority and female utilization in construction work. The goals are expressed in percentage terms for the contractor's aggregate workforce in each trade. OFCCP has set goals for minority utilization based on the percentage of minorities in the civilian labor force in the relevant area. There is
a single nationwide goal of 6.9 percent for utilization of women. The goals apply to all construction work in the covered geographic area, whether or not it is federal, federally assisted or non-federal. A notice advises bidders of the applicable goals for the area where the project is to be located.

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13.9.4 Application. This section applies to all of a construction contractor's or subcontractor's employees who are engaged in on-site construction including those construction employees who work on a non-Federal or non-Federally assisted construction site.


13.9.4.1 Agency officials will notify the appropriate Regional Director of OFCCP that an Agency financed construction contract has been awarded, and that the equal opportunity clauses are included in the contract documents.
13.9.4.2 The Regional Director, OFCCP-DOL, will enforce the non-discrimination requirements of Executive Order 11246.
13.9.5 The prospective contractor or subcontractor must comply with the Immigration Reform and Control Act of 1986, by completing and retaining Form I-9, "Employment Eligibility Verification," for employees hired. This form is available from the Immigration and Naturalization Service, and Department of Justice.
13.9.6 The prospective contractor or subcontractor must submit Form RD 400-6, "Compliance Statement," to the applicant and an Agency official as part of the bid package, prior to any contract bid negotiations and comply with the Executive Order 11246 as stated in the contract documents.
13.10 STATUTES
13.10.1 The Contractor and each Subcontractor shall comply with the following statutes (and with regulations issued pursuant thereto, which are incorporated herein by reference):
13.10.1.1 Copeland Anti-Kickback Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR part 3). This Act provides that each Contractor shall be prohibited from inducing, by any means, any person in connection with construction to give up any part of the compensation to which the person is otherwise entitled.

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13.10.1.2 Clean Air Act (42 U.S.C. 7414), section 114, and Water Pollution Control Act (33 U.S.C. 1813), section 308. Under Executive Order 11738 and Environmental Protection Agency (EPA) regulations 40 C.F.R. part 15, all Contracts in excess of $100,000 are required to comply with these Acts. The Acts require the Contractor to:
.1 Notify the Owner of the receipt of any communication from EPA indicating that a facility to be utilized in the performance of the Contract is under consideration to be listed on the EPA list of Violating Facilities.
.2 Certify that any facility to be utilized in the performance of any nonexempt Contractor or Subcontractor is not listed on the EPA list of Violating Facilities as of the date of the Contract Award.
.3 Include or cause to be included the above criteria and requirements of paragraphs .1 and .2 in every nonexempt subcontract, and that the Contractor will take such action as the Government may direct as a means of enforcing such provisions.
13.10.1.3 Restrictions on Lobbying (Public Law 101-121, section 319) as supplemented in Department of Agriculture regulations (7 CFR part 3018). This statute applies to the recipients of contracts or subcontracts that exceed $100,000 at any tier under a Federal loan that exceeds $150,000 or a Federal grant that exceeds $100,000. If applicable, the Contractor must complete a certification form on lobbying activities related to the specific Federal loan or grant that is a funding source for this contract. The certification and disclosure forms shall be provided by the Owner.
13.11 RECORDS
13.11.1 If the Contract is based on a negotiated Bid, the Owner, the Agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the Contractor which are pertinent to a specific Federal loan program for the purpose of making audit, examination, excerpts, and transcriptions. The Contractor shall maintain records for at least three years after the Owner makes final payment and all other pending matters are closed.

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Attachment 4

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13.12 ENVIRONMENTAL REQUIREMENTS


13.12.1 Mitigation Measures – The contractor shall comply with applicable mitigation measures established in the environmental assessment for the project. These may be obtained from the Agency representative.
13.12.2 The Contractor, when constructing a Project involving trenching, excavating, or other earth moving activity, shall comply with the following environmental constraints:
13.12.2.1 Endangered Species, Historic Preservation, Human Remains and Cultural Items, Hazardous Materials, and Paleontology – Any excavation or other earth moving activity by the Contractor that provides evidence of the presence of endangered or threatened species or their critical habitat, uncovers a historical or archaeological artifact, human remains or cultural items, hazardous materials, a fossil or other paleontological materials will require the Contractor to:
.1 Temporarily stop work;
.2 Provide immediate notice to the Architect and the Agency, and in the case of potentially hazardous materials, provide immediate notice to local first responders and take such measures as necessary to protect the public and workers;
.3 Take reasonable measures as necessary to protect the discovered materials or protected resource;
.4 Abide by such direction as provided by the Agency, or Agencies responsible for resource protection or hazardous materials management; and
.5 Resume work only upon notice from the Architect and the Agency.
13.12.3 Lead-Based Paint - The Contractor and Owner shall comply with applicable Agency requirements of the Lead-Based Paint Poisoning Prevention Act, as amended (42 U.S.C. 4821), and the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851) for rehabilitation work on residential property built prior to 1978.

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13.13 DEBARMENT AND SUSPENSION
13.13.1 The Contractor shall comply with the requirements of 7 CFR part 3017, which pertains to the debarment or suspension of a person from participating in a Federal program or activity.

ARTICLE 15 CLAIMS AND DISPUTES


Add the words "may be" after "on the parties but" in the last sentence of subparagraph 15.2.5.
Replace the word "shall" with the word "may" in the first sentence, first occurrence of subparagraph 15.3.2
15.4.1.2 The arbitrators will select a hearing location as close to the Owner's locale as possible.

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ATTACHMENT TO AIA DOCUMENT A133-2009, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price.

The provisions of this Attachment shall delete, modify, and supplement the provisions contained in the “Standard Form of Agreement Between Owner and Construction Manager as Constructor", AIA Document A133-2009 Edition. The provisions contained in these Modifications shall supersede any conflicting provisions of the AIA Document. The term "Agency," as used in these Modifications, shall mean the United States of America, acting through the United States Department of Agriculture.



ARTICLE 2, CONSTRUCTION MANAGER’S RESPONSIBILITIES
2.3.2.5 Add a sentence to the end of subparagraph 2.3.2.5 reading “The Construction Manager shall attend on-site progress meetings no less than once a month during the periods of active construction.”

ARTICLE 7, PAYMENTS FOR CONSTRUCTION PHASE SERVICES


7.1.7.3 and 7.1.7.4–Delete both of these paragraphs. Reference insert 7.1.11 for retainage on each pay application.
7.1.8 Delete existing paragraph and replace with the following:
The Owner and Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments to Subcontractors. Except with the Owner’s prior approval, payments to Subcontractors shall be subject to retention of not less than ten percent (10%). The Construction Manager shall execute subcontracts in accordance with those agreements.

7.1.11 Insert the following subparagraph:
7.1.11 The amount retained, on each pay application, shall be 10% of the value of Work until 50% of the Work has been completed. At 50% completion, further partial payments shall be made in full to the Construction Manager and no additional amounts may be retained unless the Architect certifies that the Work is not proceeding satisfactorily, but amounts previously retained shall not be paid to the Construction Manager. At 50% completion or any time thereafter when the progress of the Work is not satisfactory, additional amounts may be retained but in no event shall the total retainage be more than 10% of the value of Work completed.

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7.2.2 Replace the word "seven" with the word "ten (10)" in the second

sentence; and add the words, "using AIA Document G702, 'Application and Certificate for Payment,' or Form RD 1924-18, 'Partial Payment Estimate,'" after "Certificate for Payment" in that sentence.



7.2.3 Delete the first two sentences of section 7.2.3 and replace them with the following sentences:
If the Owner's auditors report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall not be entitled to request mediation of the disputed amount without seeking an initial decision pursuant to Section 15.2 of A201-2007 unless the Owner specifically authorizes such action in writing. If such action has been authorized by the Owner, the Construction Manager may make a request for mediation within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment.
7.2.5 Insert the following subparagraph:
7.2.5 Amounts withheld from the final payment to cover any incomplete Work are not considered retainage and shall not be paid to the Construction Manager until the work is actually completed and accepted by the Owner. Such withholdings shall not be less than 150% of the estimated cost to complete the Work.

ARTICLE 11, MISCELLANEOUS PROVISIONS

11.5 Delete “Other Provisions:” and insert the following paragraph:
11.5 The date of Substantial Completion established by this contract is:
11.6 Insert the following paragraph:
11.6 If the Work is not substantially complete on or before the date of Substantial Completion established in paragraph 11.5, or extension thereof granted by the Owner, the Construction Manager shall pay to the Owner liquidated damages in the sum of $______ for each calendar day of delay. Any sums that may be due by the Construction Manager to the Owner as liquidated damages may be deducted from any monies due or to become due to the Construction Manager under the Contract or may be collected from the Construction Manager’s surety.
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11.7 Insert the following paragraph:
11.7 This Agreement shall not become effective until concurred with in writing by the Agency. Such concurrence shall be evidenced by the signature of a duly authorized representative of the Agency in the space provided at the end of the Agency Attachment to this Agreement.
ARTICLE 12, SCOPE OF THE AGREEMENT
12.1 Delete the last sentence of section 12.1 and replace it with the following sentence:
“This Agreement may be amended only by written instrument signed by Agency, the Owner, and the Construction Manager.”
12.2.5 The following Documents should be referenced, if applicable:
Attachment to the Standard Form of Agreement Between Owner and Construction Manager as Constructor (this Attachment)

General Conditions of the Contract for Construction, AIA A201-2007

Attachment to the General Conditions of the Contract for Construction (RD Instruction 1942-A, Guide 27, Attachment 4)

Invitation for Bids

Instructions to Bidders (AIA Document A701-1997)

Attachment to Instructions to Bidders (RD Instruction 1942-A, Guide 27, Attachment 2)

Bid Form

Bid Bond


Compliance Statement (Form RD 400-6)Payment Bond

Performance Bond

Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transactions (Form AD 1048)

Disclosure of Lobbying Activities (Form SF-LLL)

Certification for Contracts, Grants and Loans (RD Instruction 1940-Q, Exhibit A-1)

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SIGNATURE BLOCK:


The following signature block shall replace the signature block following paragraph 12.2:
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in duplicate on the respective dates indicated below:

OWNER:
ATTEST: ___________________________ By _______________________________
Type Name _________________________ Type Name ________________________
Title _____________________________ Title ____________________________
Date ______________________________ Date _____________________________
CONSTRUCTION MANAGER:
ATTEST: ___________________________ By _______________________________
Type Name _________________________ Type Name ________________________
Title _____________________________ Title ____________________________
Date ______________________________ Date _____________________________


AGENCY CONCURRENCE:

By ________________________________


Type Name _________________________
Title _____________________________
Date ______________________________

The concurrence so evidenced by the Agency shall in no way commit the Agency to render financial assistance to the Owner and is without liability to the Agency for any payment hereunder, but in the event such assistance is provided, the concurrence shall signify that the provisions of this Agreement are consistent with Agency requirements.


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(Added 09-24-12, PN 458)

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