ATTACHMENT B TO CONSTURCTION CONTRACT AND HUD GENERAL CONDITIONS, FORM 5370

ADDITIONAL REQUIREMENTS

Federal lobbying requirements Both parties to this Agreement hereby affirm that no federally appropriated funds have been or will be paid by or on behalf of the parties to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this agreement.

Anti-discrimination laws. Contractor guarantees that it and all of its subcontractors, if any, are in compliance with the letter and spirit of the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401–406, as now or hereafter amended, and all applicable local, state and federal laws regarding discrimination and unfair employment practices.

State and local labor laws. Contractor guarantees that it is in compliance with all labor laws of the City of Boulder and the State of Colorado.

Federal fair labor laws. Where applicable, Contractor hereby affirms that it is in compliance with the Contract Work Hours and Safety Standards Act, 40 U.S.C. §§ 327–334, as now or hereafter amended, as supplemented by Labor Department regulations (29 C.F.R. part 5), and all other Federal Labor Standards Provisions referenced in HUD Form 4010.

Davis-Bacon Act. Where applicable, Contractor hereby affirms that it is in compliance with prevailing wage law as specified in the Davis-Bacon Act, 40 U.S.C. §§ 3141–3148, as now or hereafter amended, as supplemented by Labor Department regulations (29 CFR Part 5).

Illegal aliens. Contractor guarantees that it is and shall remain in compliance with city, state, and federal law with respect to employing or contracting with illegal aliens, including but not limited to C.R.S. § 8-17.5-101–102, as now or hereafter amended. Contractor certifies and agrees as follows: 1) Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien, 2) Contractor shall comply with all reasonable requests made in the course of an investigation by the Colorado Department of Labor and Employment. If Contractor fails to comply with any requirement of this provision or CRS 8-17.5-101 et seq., BHP may terminate the above referenced contract for breach.

Residents of the project area. Where applicable, and to the greatest extent feasible, Contractor will provide opportunities for training and employment for individuals or firms located in, or owned in substantial part, by persons residing in the area of this project pursuant to BHP Procurement Policy VIII(A)(1)(f) and 24 C.F.R. 135.

Small and minority-owned businesses. If subcontracting is anticipated, Contractor will award subcontracts for work to small and minority-owned businesses, women’s business enterprises, and labor surplus area businesses when possible pursuant to BHP Procurement Policy VIII(A)(1), Presidential Executive Orders 11625, 12138, and 12432, and Section 3 of the HUD Act of 1968.

Preference for Colorado labor. Contractor guarantees that it will employ Colorado labor to the greatest extent feasible in the performance of the specified work pursuant to C.R.S. §§ 8-17-101–103, as now or hereafter amended.

Environmental protection. Where applicable, Contractor guarantees that the work it completes under the Contract will be in compliance with all local, state, and federal environmental protection laws, including but not limited to section 508 of the Clean Water Act, section 306 of the Clean Air Act, Environmental Protection Agency regulations (40 C.F.R. Part 15), and Executive Order 11738.

Prohibition against contingent fees. Contractor hereby affirms that neither it nor any of its subcontractors have retained a “person” to solicit or secure this Contract in exchange for a commission, percentage, brokerage, contingent fee, gratuities, favors, or anything of monetary value. Contractor and any of its subcontractors may retain a person for such purposes where such person is a bona fide Contractor employee or a bona fide established commercial or selling agency.

(Continued Attachment B) Prohibition against kickbacks. Where applicable, Contractor hereby affirms that it is in compliance with the Copeland Anti-Kickback Act, 40 U.S.C. § 276(c); 18 U.S.C. § 874, as supplemented in Labor Department regulations, 29 C.F.R. Part 3, as now or hereafter amended (applicable to all contractors and subcontractors performing on any federally funded or assisted contract for the construction, prosecution, completion or repair of any public building or public work).

Energy efficiency. Contractor warrants it will abide by mandatory standards and policies relating to energy efficiency contained in the state energy conservation plan issued in compliance with the Energy Policy Act of 2005, P.L. 109-58, 119 Stat. 594.

Subcontractors. Contractor shall not issue any payments to Subcontractors until receipt of fully executed lien waivers with respect to completed Work for which payment has been received by the Subcontractor. In addition, all checks will be issued in accordance with any requirements imposed by lenders of financing for the Project. Contractor shall promptly advise Owner of any claims or demand by a Subcontractor claiming that any amount is overdue to such Subcontractor or claiming any default by Contractor in any of its obligations to such Subcontractor. To the fullest extent permitted by the law, Contractor shall indemnify and hold harmless Owner and Owner’s lenders against any assertion of claims for mechanics’ liens by Subcontractors, Subsubcontractors or material suppliers and against any assertion of security interests by suppliers of goods or materials, to the extent such claims arise from the failure of Contractor to pay Subcontractors, Subsubcontractors or material suppliers for Work for which Owner has paid Contractor or failure of Contractor to process timely applications for payment.

Project Appearance. Contractor acknowledges and agrees that Owner’s business is reliant upon the appearance of the complex and, therefore, beginning from the date of commencement and thereafter until Project completion, daily clean-up of the work site is imperative. Contractor and its Subcontractors shall, to the extent possible, clean-up their work area on a daily basis and leave it free from unnecessary debris, including without limitation, any ground debris such as nails that may be in the parking area during the Contract Time. In the instance that Contractor fails to clean-up on a daily basis then Owner may clean-up and back charge Contractor for its actual labor costs incurred in completing the same.

Compliance with Lender’s Requirements. Notwithstanding anything else contained herein, Contractor hereby agrees to amend the Contract so that the Contract complies with the requirements of all lenders who are advancing funds for the Project.

Construction Services. Notwithstanding anything else contained in the Contract, the following services shall be provided:

a. Contractor will be responsible for leading the team during the construction process. Contractor will hold Owner and Contractor weekly Progress meetings. Contractor will prepare minutes to include action items and responsibilities. At any such time, the Owner’s Rep, Bank’s Inspector, and/or the Investor’s Inspector may attend these weekly meetings.

b. Contractor will update the schedule monthly, or more frequently if warranted. The schedule will indicate work completed, work to be done, and project status in relation to the schedule.

c. Contractor will establish a costs control system enabling Owner to review, by trade, current costs in relation to final costs projections. Contractor will also establish a change order control system to advise Owner of potential added costs, thereby enabling Owner to make knowledgeable project decisions. The change order control system will be reviewed weekly. No change order will be effective unless the same is executed by a duly authorized representative of the applicable Subcontractor, Contractor, Owner, and any other parties required pursuant to the terms of any construction loan on the Project (as defined herein), and otherwise satisfies the requirements of the construction loans. Prior to submitting change order requests to Contractor, Owner will review all subcontractor and supplier submittals to verify that they in fact represent project scope changes. Any approved change orders may result in a decrease or increase in the Contract Sum.

d. Contractor will institute a reasonable submittal process after consultation with the Owner. To facilitate timely review and response, in advance of submittals Contractor will provide Owner with a list of anticipated submittals and submission dates. e. Contractor will provide quality supervision and management over all field activities. This includes on- site trades coordination, self performed work, efficient use of materials, and coordination of other involved parties.

f. Contractor will be responsible for monitoring compliance with all Project-established quality standards. This includes standards established during pre-construction, included in the contract documents, and included in the subcontractor agreements. Contractor will also monitor subcontractor compliance on warranty repairs.

g. Contractor will establish a closeout checklist of all required items and activities in the contract documents. Contractor will use the checklist to keep Owner and informed of closeout phases progress during the Progress Meetings.

h. Contractor will manage any residual warranty work required pursuant to the contractual warranty period, which will not be less than one (1) year following Substantial Completion, except for items required by Boulder Housing Partners to be warranted for two (2) years from the date of substantial completion. If a mechanics’ lien is filed by any Subcontractor or Subsubcontractor or supplier in connection with the Project, Contractor will make a cash deposit equal to one hundred fifty percent (150%) of each lien in separate escrow accounts held by the Title Company on behalf of Owner, and the construction lenders, as security for the payment of such lien. The form of the escrow agreement will be reasonably acceptable to Owner and the construction lenders. The deposit of such escrowed funds will be deemed to be a satisfaction of Contractor’s obligation with respect to such lien.

Owner’s Representative; Authority. Only the Senior Project Manager, Laura Sheinbaum, will have authority to bind Owner with respect to any consents, decisions, approvals, waivers, releases, or other modifications to the terms hereof. The Owner, in consultation with the Architect, Engineer, lenders or grantors, is the only party authorized to approve Change Orders, Change Order Directives or minor modifications to the Work.

Conflicts of Interest of Contractor. Contractor covenants that no person who presently exercises any functions or responsibilities in connection with the City of Boulder direct or indirect, in the Agreement. Contractor further covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services hereunder. Contractor further covenants that in its performance of this Agreement, no person having any conflicting interest shall be employed. Any interest on the part of Contractor or its employees will be disclosed to the Owner and to the City.

Failure of the Other Party to Substantially Perform. This agreement may be terminated by either party upon not less than seven days’ written notice should the other party fail substantially to perform in accordance with the terms of this agreement through no fault of the party initiating the termination.

Suspension/Debarment Certification. Contractor certifies that neither it nor its principals are currently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this Project, or any other federal programs.

Definition of “Work.” The term ‘Work” means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor, Subcontractors, Subsubcontractors, materials suppliers, or other entities for whom Contractor is responsible to fulfill the Contractor’s obligations, whether on or off the Property.

Indemnification. To the fullest extent permitted by Colorado Revised Statute 13-21-111.5., the Contractor shall indemnify and hold harmless the Owner, lenders, agents, employees, and officers of any of them (“indemnified parties”) from and against claims, damages, losses and expenses, including but not limited to attorney’s fees, arising out of or resulting from performance of the Work, or from the work following completion, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but not for any amounts that are greater than that represented by the degree or percentage of negligence attributable to the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person. The obligations of the indemnifications extended by the Contractor to the “indemnified parties” shall survive the termination or expiration of this Agreement.

In claims against any person or entity indemnified under this Indemnification Clause by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation shall be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.

Insurance. Contractor’s Insurance: The insurance shall be written for not less than the limits of liability specified in Invitation to Bid Document for this Contract, Required Insurance and Bond Coverage, or as required by law, whichever coverage is greater. All insurance will be placed with insurance carriers licensed in the State of Colorado and rated by A.M. Best Company as A- or better, or as otherwise accepted by Owner. Coverage’s, whether written on an occurrence or claims- made basis, shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment. Coverage for liability arising from the completed Work will be maintained for a period of three (3) years following date of commencement of the Work. The Contractor’s fulfillment of its insurance requirements as set forth herein shall not impair in any manner whatsoever its obligations of indemnification.

If any policy obtained by Contractor is a claims-made policy, the following conditions shall apply: (i) the policy shall provide Contractor the right to purchase, upon cancellation or termination by refusal to renew the policy, an extended reporting period of not less than two (2) years. Contractor agrees to purchase this extended reporting period, if needed to ensure the continuity of coverage; (ii) furthermore, if the policy is a claims-made policy, the retroactive date of any renewal of such policy shall be no later than the date this Agreement is signed by the parties hereto. If Contractor purchases a subsequent claims-made policy in place of any prior policy, the retroactive date of such subsequent policy shall be no later than the date this Agreement is signed by the parties hereto.

To the fullest extent permitted by Colorado Revised Statute 13-21-111.5., Certificates of Insurance acceptable to the Owner and evidencing the policies required by Clause 36 shall be filed with the Owner prior to commencement of the Work. Attached to said certificate, as a requirement, will be a Certificate Supplement at specified in Exhibit C. These Certificates and the insurance policies required by this document shall contain a provision that coverages afforded under the policies will not be cancelled or allowed to expire until at least 30 days’ prior written notice has been given to the Owner and lender. If any of the foregoing Insurance coverages are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required in the Contract. Information concerning reduction of coverage shall be furnished by the Contractor with reasonable promptness in accordance with the Contractor’s information and belief. If the Contractor subcontracts any portion(s) of the Services, said subcontractors shall be required to furnish certificates evidencing statutory workers’ compensation insurance including employer’s liability, commercial general liability insurance and automobile liability insurance in amounts satisfactory to the Owner, in amounts satisfactory to the Owner, Contractor, and lender. If the coverage required under this paragraph expires during the term of this Agreement, the Contractor shall provide replacement certificate(s) evidencing the continuation of the required policies. The certificate shall clearly include and specify the Additional Insured Parties. Commencement of work or services, or any payment for work without properly completed Certificates of Insurance and Certificate Supplement shall not constitute a waiver of any rights by the Owner.

36.b Owner’s Liability Insurance The Owner’s liability, as well as, the liability of the Architect, Architect’s consultants, the project’s lenders, agents, officers and employees of any of them stemming from Contractor’s operations, performance of the work, the work itself, or from supervision of the Contractor shall be covered by the Contractor’s liability on a primary basis without contribution by the Owner’s liability coverages, but not for any amounts that are greater than that represented by the degree or percentage of negligence attributable to the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. Optionally, the Owner may purchase and maintain other insurance for self-protection against claims which may arise from operations under the Contract.

36.c. Liability Insurance Special Conditions Additional Insured Parties. All policies (with the exception of workers’ compensation insurance) shall insure the interest of the Owner, Architect, Architect’s consultants, lenders, investors, grantors, agents, officers and employees regardless of any breach or violation by the Contractor of warranties, the declarations or conditions contained in such policies, any action or inaction of the Contractor and/or any person who are its employees, agents, officers or subcontractors, or any foreclosure relating to the Contractor or any change in ownership of all or any portion of the Contractor.

1. Primary Insurance. All liability insurance of the Contractor is primary and non-contributory to the Owner’s insurance. 2. Waiver of Subrogation. All insurers waive any right of subrogation the insurer has against Owner. The insurers waive any right of the insurers to any set-off or counter claim or any other reduction.

APPROVED:

______(BHP) (Date)

______(CONTRACTOR) (Date)