HomeMy WebLinkAbout090319_ca01 Department of Public Works
O Consent Agenda
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Jefferson County
Board of Commissioners
Agenda Request
To: Board of Commissioners
Philip Morley, County Administrator
From: Monte Reinders, Public Works Director/County Engineer
Agenda Date: September 3, 2019
Subject: Execute a Third Party Contract with King County Director's
Association (KCDA) and Modern Building Systems.
Project # 401204021
Statement of Issue: The Execution of a third party Contract for the manufacture,
delivery, setting and leveling of a 14x56' Modular Office Facility to the Jefferson
County Transfer Station site at 325 County Landfill Road, Port Townsend, WA 98368
Analysis/Strategic Goals/Pro's ft Con's: This procurement has been done via the
King County Director's Association. Modern Building System was found to be the most
responsive and responsible vendor. This facility will provide office, restroom, training
and breakroom facilities at the Jefferson County Transfer Station.
Fiscal Impact/Cost Benefit Analysis: This project is funded with Solid Waste funds.
The contract amount is $125,949.50 tax inclusive. This project will support Transfer
Station operations for the foreseeable future.
Recommendation: We recommend that this Contract (three originals) be signed by
the Board. Please sign all three originals, and return all to Public Works. KCDA signs
last, and JCPW will return one fully executed original to the Board.
Department Contact: Gordon D. Ramstrom, Architectural Project Planner,
360-385-9380
Reviewed By:
i-( 7
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A, .
.Phi ip-Moyle ,County Administrator Date
AGREEMENT
BETWEEN
[Jefferson County] ("CLIENT"),
KING COUNTY DIRECTOR'S ASSOCIATION ("KCDA"),
AND
CONTRACTOR
This AGREEMENT is made as of the day of , 2019, between the public entity
Jefferson County Department of Public Works ("Client") 623 Sheridan St. , Port Townsend, WA 98368_
(address); King County Directors Association(KCDA), Street Address: 18639 - 80th Ave S, Kent, WA 98032;
and the Contractor: Modern Building Systems, Inc.
This Agreement supplements the King County Directors' Association("KCDA") Purchase Order
Number 4118489 ("Purchase Order") for the Client.
A general description of the Project is:
The procurement of a 14' x56' Modular Office Facility including
delivery, set, block and level.
The Architect/Engineer("A/E"), if any, is:
NA
The Client, KCDA, and Contractor agree as set forth below.
ARTICLE 1
THE WORK
1.1 This Agreement provides supplemental terms and conditions to the Purchase Order and is
incorporated by reference into the Purchase Order as if set forth in full therein. This Agreement shall be
completed and executed for all KCDA projects that include any on-site construction activities. The Contractor
shall fully execute and complete the entire Work described in the Contract Documents.
ARTICLE 2
DATES OF COMMENCEMENT AND SUBSTANTIAL AND FINAL COMPLETION
2.1 The date of commencement of the Work (the date from which the Contract Time is measured)
shall be the date established in a notice to proceed issued by the Client, unless a different date is stated below:
2.2 The Contractor shall achieve Substantial Completion of the entire Work no later than 9eteber
29, 2019 and Final Completion no later than Ne ember--2; 2019. Modern will provide"best efforts"to
achieve desired substantial and final completion dates, subject to adjustments of the Contract Time as provided
in the Contract Documents. �v.nnl 31 t 2L)
2.3 Liquidated damages, if any, shall be $ -0- per day for each calendar day after the
Contract Time that Substantial Completion is not attained, and shall be paid to the Client.
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ARTICLE 3
CONTRACT SUM
3.1 KCDA shall pay the Contractor for the Contractor's performance of the Contract the Contract
Sum of One hungred and fifteen thousand five hundred and fifty even Dollars
($ 115, 550 . 00), subject to additions and deductions as provided in the Contract Documents. Sales tax is
not included in the Contract Sum and shall be added to the invoice between the Contractor and KCDA and to
the invoice between KCDA and the Client.
The contract sum has been derived from the contractor's bid to KCDA directly, or to KCDA through the
Association of Educational Purchasing Agencies (AEPA)dated May 7, 2019, and is made up of the following
components: Attached bid from the contractor, and KCDA Purchase order dated May 16, 2019
3.2 The Contract Sum is based upon and includes the following alternates, if any, which are
described in the Contract Documents and are hereby accepted by the Client:
NA
3.3 Unit prices beyond those listed in the Contractor's Bid to KCDA or AEPA, if any, are as
follows: NA
3.4 Allowances, if any, are as follows: NA
3.5 If this Agreement is for a Project for the Contract Sum of one million dollars or more, complete
below the names of the following subcontractors with whom the Contractor will subcontract for performance of
the work:
NA HVAC (heating, ventilation, and air conditioning)
NA Plumbing as described in chapter 18.106 RCW
NA Electrical as described in chapter 19.28 RCW.
ARTICLE 4
PAYMENT
4.1 Whenever this Agreement states that KCDA will make payments, the parties agree that payment
from the Client to KCDA is a condition precedent to payment from KCDA to the Contractor and that KCDA
will use such payments from the Client to pay Contractor. KCDA will make payments to the Contractor as
provided below and elsewhere in the Contract Documents based upon Application(s) for Payment submitted by
the Contractor and per Article 15. KCDA will schedule final payment, constituting the entire unpaid balance of
the Contract Sum except statutory retainage,to the Contractor when the Work has achieved Final Completion,
the Agreement has been fully performed, the Client's Board of Directors has accepted the Work, and the Client
has agreed to receive billing from KCDA. The retainage shall be paid pursuant to RCW 60.28 and the Contract
Documents.
4.2 Payments due and unpaid under the Agreement shall bear interest as specified by RCW 39.76,
not to exceed the Bank of America prime rate plus 2%.
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1
ARTICLE 5
PERMITS AND FEES
5.1 The Client will secure and pay for the cost of any required building permit. The Client shall
secure and pay for necessary approvals, easements, assessments and charges required for the use or occupancy
of permanent structures or permanent changes in existing facilities.
5.2 The Contractor shall secure and pay, as a part of the Contract Sum, for all other permits and
governmental fees, licenses and inspections necessary for proper execution and completion of the construction
of the Work.
ARTICLE 6
PROPERTY INSURANCE
6.1 The Client shall include this project in its existing property insurance coverage for loss or
damage to the property in the course of construction. Upon the occurrence of an insured loss, the Client shall
have the power to adjust and settle any loss with the insurers.
6.2 The Contractor shall be responsible for securing property insurance for its own equipment. This
property insurance shall be on an"all-risk"or equivalent policy form and shall include, but not be limited to,
coverage for fire and extended coverage,theft, vandalism, malicious mischief, collapse and windstorm. Any
deductible shall be the sole responsibility of the Contractor. The Contractor's other insurance requirements are
described in Article 17.
ARTICLE 7
ENUMERATION OF CONTRACT DOCUMENTS
The Contract Documents are enumerated as follows, except for modifications issued after execution of
this Agreement:
7.1 KCDA Invitation to Bid Number 15-255 or AEPA Invitation to Bid Number AEPA - and all of
the terms and conditions incorporated therein, including but not limited to all terms and conditions in the
Invitations for Bids, Request for Proposal, and Public Works Procedures for Members and Contractors.
7.2 For AEPA bids, Washington, King County Directors' Association(KCDA) Additional Agency
Terms and Conditions as listed in the AEPA Invitation to Bid.
7.3 KCDA Purchase Order Number 4118489.
7.4 This executed Agreement between the Client and Contractor, including the attached General
Conditions.
7.5 Any Supplementary and other Conditions of the Agreement.
7.6 The Specifications as follows:
Section Title Pages
NA
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1
7.7 The Drawings as follows:
Number Title Date
NA
7.8 The Addenda(if any) as follows:
Number Date Pages
NA
7.9 Department of Labor and Industries Prevailing Wage Rates.
County: Jefferson County
Effective Date: P.O 4118489 May 16, 2019
7.10 Any other documents forming part of the Contract Documents and listed below:
This Agreement entered into as of the day and year first written above.
KING COUNTY DIRECTORS' ASSOCIATION CONTRACTOR ,,,,
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CLIENT
By
(Signature)
(Printed name and title)
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Philip C.Hunsucker,Chief Civil Deputy Prosec ting Attorney
Jefferson County Prosecuting Attorney's Office
Agreement between Client, KCDA and Contractor- Washington 20122115_I.DOC Page 4
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GENERAL CONDITIONS
ARTICLE 8
THE CONTRACT DOCUMENTS ARTICLE 9
ADMINISTRATION OF THE AGREEMENT
8.1 The intent of the Contract Documents is to
include all items necessary for the proper execution and 9.1 The Client,with assistance from the A/E,will
completion of the Work by the Contractor. The Contract provide administration of the Agreement. The Client must
Documents are complementary,and what is required by one is approve in writing all changes in the Contract Sum or Time and
as binding as if required by all. Performance by the Contractor all Change Orders, Construction Change Directives, and
is required to the extent consistent with the Contract Documents payments to the Contractor.
and reasonably inferable from them as being necessary to
produce the intended results. 9.2 No representative of KCDA, the Client, or
the A/E is authorized to revoke, alter, enlarge,relax or release
8.2 The Contract Documents shall not be any requirements of the Contract Documents,nor to approve or
construed to create a contractual relationship of any kind accept any portion of the Work whether or not executed in
between either the Client or KCDA and a Subcontractor of any accordance with, nor to issue instructions contrary to the
tier, or between any persons or entities other than the Client, Contract Documents. All warranties, guarantees, and
KCDA,and Contractor. certificates shall inure to the benefit of the Client.
8.3 The term "Work" means the demolition, 9.3 The Client or the A/E may disapprove,
abatement, disposal, construction and services required by the condemn or reject work when,in its opinion,the Work does not
Contract Documents, whether completed or partially conform to the Contract Documents. The Client or the A/E may
completed, and includes all other labor, materials, equipment require special inspection or testing of any Work in accordance
and services provided or to be provided by the Contractor to with the provisions of the Contract Documents whether or not
fulfill the Contractor's obligations. The Work may constitute such Work is then fabricated,installed or completed.
the whole or a part of the Project.
9.4 The Client or the A/E may call,schedule and
8.4 The term "A/E" means the entity listed as conduct job meetings,which the Contractor and representatives
such on the first page of this Agreement, if any. The A/E may of its Subcontractors shall attend, to discuss such matters as
be an architect,engineering or similar company, or consultant, procedures,progress,problems and scheduling.
and is not necessarily a licensed architect or engineer. If
"None" or "N/A" is listed for the A/E, then the Client or its 9.5 The Client,KCDA,and the A/E may visit the
designated representative will perform all of the functions of site at intervals each considers appropriate to the stage of the
the A/E described herein. The A/E is not an agent of the Client Work to become generally familiar with the progress and
or KCDA, and is not authorized to speak on behalf of or bind quality of the completed Work. However,none of them will be
the Client or KCDA. required to make exhaustive or continuous on-site inspections
8.5 The Contractor's execution of the Agreement to check the quality or quantity of the Work.
is a representation and acknowledgement that the Contractor
has visited the site and become familiar with the local 9.6 The Client may occupy the site during the
conditions under which the Work is to be performed, that the course of the Work.
Contract Sum is reasonable compensation for all the Work,and
that the Contract Time is adequate for the performance of the ARTICLE 10
Work.The Contractor's execution of the Agreement is a further THE CONTRACTOR
representation and acknowledgement that the Contractor has
carefully checked and verified all pertinent figures and 10.1 The Contractor shall perform, supervise and
examined the Contract Documents and the Project site, direct the Work,using the Contractor's best skill and attention.
including any existing structures,and that it has satisfied itself The Contractor shall be solely responsible for and have control
as to the nature, location, character,quality and quantity of the over construction means, methods, techniques, sequences,
Work, the labor, materials, equipment, goods, supplies, work, personnel and procedures, for safety, and for coordinating all
services and other items to be furnished, and all other portions of the Work under the Agreement,unless the Contract
requirements of the Contract Documents,as well as the surface Documents specifically provide other instructions concerning
conditions and other matters that may be encountered at the these matters. The Contractor shall be and operate as an
Project site or affect performance of the Work or the cost or independent contractor in the performance of the Work and
difficulty thereof.
shall have complete control over and responsibility for all
8.6 KCDA is an intended third-party beneficiary personnel performing the Work. The Contractor is not
of this Agreement and may enforce all of its terms directly authorized to enter into any agreements or undertakings for or
against the Contractor. Contractor hereby assigns to the Client on behalf of KCDA or the Client or to act as or be an agent or
all manufacturers' warranties. employee of KCDA or the Client.
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10.6 Legal Compliance. The Contractor shall
10.2 The Contractor shall provide and pay for all comply with and give notices required by laws, ordinances,
labor,materials,equipment,tools,construction equipment and rules, regulations, and lawful orders of public authorities
••- machinery, water, heat, utilities, transportation, disposal, and bearing on performance of the Work. The Contractor shall
other facilities and services necessary for the proper execution promptly notify KCDA, the Client, and A/E in writing if the
and completion of the Work, whether temporary or permanent Contractor observes the Drawings or Specifications to be at
and whether or not incorporated or to be incorporated in the variance with them.
Work.
10.7 Submittals. The Contractor shall review,
10.3 Workers. The Contractor shall enforce approve and submit to the Client or A/E with reasonable
strict discipline and good order among the Contractor's promptness Shop Drawings,Product Data,Samples and similar
employees and other persons carrying out the Work. The submittals required by the Contract Documents. The Work
Contractor shall not permit employment of unfit persons or shall be in accordance with approved submittals.
persons not skilled in tasks assigned to them. The Contractor
shall be responsible to KCDA and the Client for the acts and 10.8 Progress Schedule. Within seven days of
omissions of the Contractor's employees, Subcontractors of execution of this Agreement, the Contractor shall submit a
any tier and their agents and employees,and other persons preliminary schedule of the Work to the Client. Failure to do
performing portions of the Work under a contract with the so shall constitute a material breach of the Contract and a
Contractor. At no change to the Contract Sum or Contract material breach of the conditions of the bid bond. Within thirty
Time,the Client may provide written notice requiring the days after execution of the Agreement,and before any progress
Contractor to remove from the Work any employee or other payment need be made,the Contractor,after consultations with
person carrying out the Work that the Client considers its Subcontractors, shall submit a Progress Schedule to the
objectionable. If the Work is being performed at a site in Client. Neither the Client nor the A/E will, however, be
active school use or where there is a likelihood of contact with required to review or approve the substance or sequence of the
children,a person shall be unfit and removed from the site if Progress Schedule, which are the Contractor's sole
he or she is a registered sex offender or has pled guilty to or responsibility. The Contractor will be responsible for planning,
has been convicted of any felony crime involving the physical scheduling, managing, and reporting the progress of the Work
injury or death of a child(RCW 9A.32 or RCW 9A.36 but not in accordance with all of the specific methods and submittals
RCW 46.61--motor vehicle violation),the physical neglect of described in the Contract Documents. The Contractor shall use
a child(RCW 9A.42),sexual offenses against a minor(RCW the Contract Schedule to plan, coordinate, and prosecute the
9A.44),sexual exploitation of a child(RCW 9.68A),the sale Work in an orderly and expeditious manner.
or purchase of a minor child(RCW 9A.64.030),promoting
prostitution of a child(RCW 9A.88),or violation of similar 10.9 Clean-Up. The Contractor shall keep the
laws of another jurisdiction. Failure to comply with this premises and surrounding area free from accumulation of waste
section shall be grounds for the immediate termination of this materials or rubbish caused by operations under the Agreement.
Agreement for cause. Prior to completion of the Work or at the Client's request, the
Contractor shall remove from and about the Project waste
10.4 Warranty. The Contractor warrants that materials, rubbish, the Contractor's tools, construction
materials and equipment furnished under the Agreement will be equipment,machinery and surplus materials. If the Contractor
of good quality and new,that the Work will be performed in a fails to do so,the Client may do so and charge to the Contractor
skillful and workmanlike manner,free from defects not inherent all costs incurred.
in the quality required or explicitly permitted,and that the Work
will conform to the requirements of the Contract Documents. 10.10 Access. The Contractor shall provide
The Client may conclude that Work not conforming to these KCDA, the Client, the A/E and their respective consultants
requirements, including substitutions or deviations from the access to the Work wherever located.
drawings or specifications not properly approved and
authorized, is defective. The Contractor's warranty excludes 10.11 Royalties and Patents. The Contractor shall
remedy for damage or defect caused by abuse, modifications pay all royalties and license fees, shall defend suits or claims
not executed by the Contractor, improper or insufficient for infringement of patent rights and shall hold KCDA, the
maintenance, improper operation, or normal wear and tear Client, and the A/E harmless from loss on account thereof,
under normal usage. unless the Contract Documents require the particular infringing
design, process or product of a particular manufacturer or
10.5 Taxes and Fees. In accordance with manufacturers.
Article 3, KCDA shall invoice the Client and pay all sales tax.
The Contractor shall pay all other consumer, use, B & 0, and 10.12 Indemnification. Subject to the following
other similar taxes that are legally enacted when bids are conditions and to the fullest extent permitted by law, the
received,whether or not yet effective or merely scheduled to go Contractor shall defend, indemnify,and hold harmless KCDA,
into effect. the Client,and the A/E and their respective agents,employees,
directors, officers, consultants, successors and assigns
("Indemnified Parties") from and against all claims, damages,
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losses and expenses, direct and indirect, or consequential, discrepancy between the attached or provided schedule of
including but not limited to costs and attorneys' fees incurred prevailing wage rates and the published rates as are applicable
on such claims and in proving the right to indemnification, under WAC 296-127-011,or if no schedule is attached,then the
arising out of or resulting from performance of the Work, any applicable published rates shall apply at no increase to the
act or omission of the Contractor, its agents, any of its Contract Sum. The Contractor shall provide the respective
Subcontractors of any tier, and anyone directly or indirectly Subcontractors with a schedule of the applicable prevailing
employed by the Contractor or Subcontractors of any tier wage rates. The Industrial Statistician will answer questions
("Indemnitor"). The Contractor will fully defend, indemnify, relating to prevailing wage data upon request.
and hold harmless the Indemnified Parties for the sole
negligence of the Indemnitor. The Contractor will defend, 10.13.2 Pursuant to RCW 39.12.060, in case any
indemnify, and hold harmless the Indemnified Parties for the dispute arises as to what are the prevailing rates of wages for
concurrent negligence of the Indemnitor to the extent of the work of a similar nature, and such dispute cannot be adjusted
Indemnitor's negligence. The Contractor agrees to being added by the parties in interest, including labor and management
by KCDA or the Client as a party to any mediation,arbitration, representatives,the matter shall be referred for arbitration to the
or litigation with third parties in which KCDA or the Client director of the Department of Labor and Industries, whose
alleges indemnification or contribution from an Indemnitor. decision therein shall be final and conclusive and binding on all
The Contractor agrees that all of its Subcontractors of any tier parties involved in the dispute.
will, in the subcontracts, similarly stipulate; in the event any
does not, the Contractor shall be liable in place of such 10.13.3 The Contractor shall defend, indemnify and
Subcontractor(s). To the extent a court or arbitrator strikes any hold the Client harmless, including attorneys' fees, from any
portion of this indemnification provision for any reason, all violation or alleged violation of RCW 39.12 ("Prevailing
remaining provisions shall retain their vitality and effect. In Wages on Public Works") and RCW 51 ("Industrial
claims against any person or entity indemnified under this Insurance"), including without limitation RCW 51.12.050, by
Section 10.12 by an employee of the Contractor, a the Contractor, any Subcontractor of any tier, or any person
Subcontractor,anyone directly or indirectly employed by them performing Work on behalf of the Contractor or any
or anyone for whose acts they may be liable, the Subcontractor of any tier.
indemnification obligation under this Section 10.12 shall not be
limited by a limitation on amount or type of damages, 10.14 The Contractor shall comply with all
compensation or benefits payable by or for the Contractor or a applicable provisions of RCW 49.28.
Subcontractor under workers' compensation acts, disability
benefit acts or other employee benefit acts. After mutual 10.15 Pursuant to RCW 49.70 and WAC 296-307-
negotiation of the parties,the Contractor waives immunity as to 560 et seq.,the Contractor shall provide KCDA and the Client
the Client, KCDA, the A/E and their consultants only under copies of and have available at the Project Site a workplace
Title 51 RCW, "Industrial Insurance." IF THE survey or material safety data sheets for all "hazardous"
CONTRACTOR DOES NOT AGREE WITH THIS WAIVER, chemicals under the control or use of Contractor or any
IT MUST PROVIDE A WRITTEN NOTICE TO THE Subcontractor at the Project Site.
SCHOOL DISTRICT PRIOR TO THE DATE FOR THE
RECEIPT OF BIDS, OR THE CONTRACTOR WILL BE 10.16 The Contractor shall maintain and preserve
DEEMED TO HAVE NEGOTIATED AND WAIVED THIS for at least three years from the date of final payment books,
IMMUNITY. The provisions of this Section shall survive the ledgers, records, documents, estimates, bidding documents,
expiration or termination of this Agreement. correspondence, logs, schedules, electronic data and other
evidence relating or pertaining to the costs incurred by the
10.13 Prevailing Wages. Contractor in connection with or related to the Agreement
and/or performance of the Contract("records") to such extent
10.13.1 Pursuant to RCW 39.12, no worker, laborer, and in such detail as will properly reflect and fully support
or mechanic employed in the performance of any part of this compliance with the Contract Documents and with all costs,
Agreement shall be paid less than the"prevailing rate of wage" charges and other amounts of whatever nature for which
(in effect as of the date that bids are due)as determined by the reimbursement or payment is or may be claimed under the
Industrial Statistician of the Department of Labor and Contract. The Contractor agrees to make available at all
Industries, ESAC Division, PO Box 44540, Olympia WA reasonable times at the office of the Contractor all such records
98504-4540, Telephone (360) 902-5335. The schedule of the for inspection, audit and reproduction (including electronic
prevailing wage rates for the locality or localities where this reproduction) by KCDA and the Client and their
Work will be performed is attached and made a part of this representatives. These requirements shall be applicable to each
Agreement by reference as though fully set forth herein; if not Subcontractor of any tier and included in each Subcontract and
attached, then the applicable prevailing wages are determined purchase order issued with respect to the Work. The Contractor
as of the Bid Date for the county in which the Project is located agrees, on behalf of itself, its representatives, and
and are available at http://www.lni.wa.gov/ Subcontractors of any tier and their representatives, that any
TradesLicensing/PrevWage/WageRates/default.asp. A copy is rights under RCW 42.56 will commence at Final Acceptance,
available for viewing at the Client's office,and a hard copy will and that the invocation of such rights at any time by the
be mailed upon request. To the extent that there is any Contractor or a Subcontractor of any tier or any of their
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• representatives shall initiate an equivalent right to disclosures construction or operations on the site under conditions of the
from the Contractor and Subcontractors of any tier for the contract identical or substantially similar to those of the
benefit of KCDA and the Client. Because of the importance of Contract Documents. The Contractor has the responsibility to
• the access of such records to the Client in the case of a Claim, coordinate its Work with such separate contractors and the
if the Contractor or any Subcontractor fails to fully comply with Client's own forces.
the requirements of this section with regard to any Claim,such
Claim shall be deemed to be waived. 12.2 The Contractor shall afford the Client and
separate contractors reasonable opportunity for the introduction
ARTICLE 11 and storage of their materials and equipment and performance
SUBCONTRACTORS of their activities, and shall connect and coordinate the
Contractor's construction and operations as required by the
11.1 A "Subcontractor" is a person or entity that Contract Documents.
has a direct contract with the Contractor to perform a portion of
the Work at the site or to supply materials or equipment. A ARTICLE 13
"Subcontractor of any tier" includes Subcontractors as well as CHANGES IN THE WORK
all direct and lower level sub-subcontractors and suppliers.
13.1 The Client, without invalidating the
11.2 As soon as practicable after award of the Agreement, may order changes in the Work consisting of
Agreement, the Contractor shall confirm in writing to KCDA additions, deletions or modifications ("Changes"), and the
and the Client the names of the Subcontractors for each portion Contract Sum and Contract Time will be adjusted accordingly.
of the Work. The Contractor shall not contract with any Changes in the Work, the Contract Sum and/or the Contract
Subcontractor to whom the Client has made reasonable and Time shall be authorized only by written Change Order signed
timely objection or which is different from the one listed in by KCDA,the Client,the A/E and the Contractor or by written
conjunction with the bid. Contracts between the Contractor and Construction Change Directive signed by the Client and the
Subcontractors shall(1)require each Subcontractor to be bound A/E.
to the Contractor by the terms of the Contract Documents to the
extent of the Work to be performed by the Subcontractor and to 13.1.1 Change Orders. A Change Order is a written
assume toward the Contractor all the obligations and instrument signed by KCDA, the Client, and the Contractor
responsibilities which the Contractor, by the Contract stating their agreement upon a change in the Work;the amount
Documents, assumes toward KCDA and the Client, and (2) of the adjustment in the Contract Sum,if any;and the extent of
allow to the Subcontractor the benefit of all rights,remedies and the adjustment in the Contract Time, if any.
redress afforded to the Contractor by these Contract
Documents. 13.1.2 Construction Change Directives. A
Construction Change Directive is a written order prepared and
11.3 The Contractor shall promptly pay (and signed by the Client and the A/E that directs a change in the
secure the discharge of any liens asserted by) all persons Work and states a proposed basis for adjustment, if any, in the
properly furnishing labor, equipment, materials or other items Contract Sum or Contract Time,or both. It shall be used in the
in connection with the performance of the Work(including,but absence of total agreement on the terms of a Change Order. The
not limited to, any Subcontractors). The Contractor shall Contractor shall promptly proceed with the change in the Work
furnish to KCDA and the Client such releases of liens and described in the Construction Change Directive. As soon as
claims and other documents as KCDA or the Client may request possible, and within seven days of receipt,the Contractor shall
from time to time to evidence such payment (and discharge). advise KCDA and the Client in writing of the Contractor's
KCDA may, at its option, withhold payment, in whole or in agreement or disagreement with the cost or the method, if any,
part, to the Contractor until such documents are so furnished. provided in the Construction Change Directive for determining
The Contractor shall defend, indemnify, and hold harmless the proposed adjustment in the Contract Sum or Contract Time.
KCDA and the Client from any liens,including all expenses and
attorneys'fees. Nothing in the Contract Documents shall create 13.2 Changes in the Work shall be priced using the
any obligation on the part of KCDA,the Client, or A/E to pay Contractor's unit prices and/or R.S.Means pricing as submitted
or to see to the payment of any moneys due any Subcontractor in its Bid to KCDA or AEPA. If no such unit prices are listed
of any tier or other person or entity,except as may otherwise be for the Changes in the Work,and if the parties cannot agree on
required by laws and regulations. the cost or credit to KCDA and the Client from a Change in the
Work, the Contractor shall keep and present, in such form as
ARTICLE 12 KCDA or the Client may prescribe, an itemized accounting
CONSTRUCTION BY CLIENT OR BY together with supporting data. The total cost of any Change or
SEPARATE CONTRACTORS Claim shall be limited to the reasonable value of the following:
12.1 The Client reserves the right to perform 13.2.1 Direct labor costs: The effective
construction or operations related to the Project with the W.D.O.L.&I. prevailing hourly wage for the laborers,
Client's own forces and to award separate contracts in journeymen, and foremen performing and/or directly
connection with other portions of the Project or other supervising the Changed Work on the site. The premium
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• portion of overtime wages may not be included unless pre-
approved in writing by the Client. The hourly cost shall be 13.3.2 Claim Submission. Within 21 days of the
based upon basic wages and mandatory fringe benefits and Notice of Claim,the Contractor shall provide both KCDA and
• - workers' insurances. the Client in writing with a Claim, which shall include a clear
description of the Claim,any and all changes in cost and in time
13.2.2 Direct material costs: An itemization of the to which the Contractor and its Subcontractors of any tier may
quantity of materials necessary to perform the Change in the be entitled under this Agreement for the Claim, and data
Work and the net cost therefor. supporting the Claim. The claim of a Subcontractor may be
brought only through the Contractor and only after the
13.2.3 Construction equipment usage costs: An Contractor notifies KCDA and the Client in writing that the
itemization of the actual length of time construction equipment Contractor has reviewed and agrees with the Claim. No act,
appropriate for the Work will be used solely on the Change in omission, or knowledge, actual or constructive, of the Client
the Work at the Site times the lower of the actual rental receipt shall in any way be deemed to be a waiver of the requirement
or applicable current state,NECA, EquipmentWatch, or MCA for a timely written Claim unless the Client provides the
rental cost. Actual,reasonable mobilization costs are permitted Contractor with an explicit, unequivocal written waiver.
if the equipment is brought to the Site solely for the Change in Failure to comply with these requirements shall constitute
the Work. The rate for equipment necessarily standing by for waiver of the Claim.
future use on the Work shall be 50% of the rate established
above. 13.3.3 Informal Resolution. KCDA and the Client
will make a determination of the Claim. If no determination is
13.2.4 Cost of any change in insurance or bond made within two weeks of submission of the Claim,the Claim
premium. Upon request, the Contractor shall provide KCDA shall be deemed rejected. If the Contractor disagrees with
and the Client with supporting documentation. KCDA and the Client's determination and wishes to pursue the
Claim further, the Contractor must, within fourteen days of
13.2.5 Subcontractor costs: Payments the receipt of the determination,provide KCDA and the Client with
Contractor makes to Subcontractors for Changed Work a written request that a representative of the Contractor,KCDA,
performed by Subcontractors of any tier. The cost of Work for and the Client meet, confer, and attempt to resolve the Claim.
Subcontractors of any tier shall be determined in the same This meeting will then take place at a mutually convenient time
manner as prescribed in this Section 13.2. within thirty days of the request, unless the Client elects to
proceed directly to mediation.
13.2.6 Fee: The allowance for all combined
overhead, profit, and other costs, including all office, home 13.3.4 Mediation. The Contractor may bring no
office, extended and site overhead(including project manager, litigation against the Client or KCDA unless the Claim is first
project engineer,superintendent and general foreman time),and subject to non-binding mediation under the Construction
all delay and including impact costs of any kind, added to the Mediation Rules of the American Arbitration Association
total cost to the Client of any Change Order or any Claim for ("AAA"). The Contractor is responsible for initiating the
additional work or extra payment of any kind on this Project mediation process. This requirement cannot be waived except
shall be calculated consistent with the provisions of the KCDA by an explicit written waiver signed by KCDA,the Client,and
contract. The change order must be signed by both the Client the Contractor. To initiate the mediation process, the
and Contractor. Contractor shall submit a written mediation request to KCDA
and the Client within thirty days of the meeting undertaken in
13.3 Dispute Resolution. All claims, disputes Section 13.3.3. If the parties are unable to agree to a mediator
and other matters in question of the Contractor, direct or within thirty days after KCDA and the Client's receipt of the
indirect, arising out of, or relating to, the Contract Documents written request for mediation, any party may submit a request
or the breach thereof("Claims"), except Claims which have for mediation to the AAA. An officer of the Contractor and of
been waived under the terms of the Contract Documents, shall KCDA and the Superintendent or designee of the Client, all
be decided exclusively by the following dispute resolution having full authority to settle the Claim (subject only to
procedure;claims that have been waived under the terms of the ratification by the Client's Board of Directors),must attend the
Contract Documents are not permitted to be brought in any mediation session. To the extent there are other parties in
forum. The Contractor shall diligently carry on the Work and interest,such as Subcontractors,their representatives,with full
maintain the progress schedule during the dispute resolution authority to settle the Claim, shall also attend the mediation
procedure, including any litigation proceedings, unless the session. Unless KCDA, the Client, and Contractor mutually
parties mutually agree in writing otherwise. agree in writing otherwise,all unresolved Claims in the Project
shall be considered at a single mediation session which shall
13.3.1 Notice of Claim. The Contractor shall submit occur prior to Final Acceptance by the Client.
notice of all Claims to both KCDA and the Client in writing
within seven days of the event giving rise to them and shall 13.3.5 Litigation. The Contractor may bring no
include a clear description of the event and its probable effect. litigation on Claims unless such Claims have been properly
Failure to comply with these requirements shall constitute raised and considered in the dispute resolution procedures of
waiver of the Claim. Sections 13.3.1 through 13.3.4 above. All unresolved Claims
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of the Contractor shall be waived and released unless the from such condition in accordance with the dispute resolution
Contractor has strictly complied with the time limits of the procedure in Section 13.3.
Contract Documents, and litigation is served and filed within
• the earlier of (a) 120 days after the Date of Substantial 13.6 Claims for Consequential Damages. The
Completion as designated in writing by the Client or(b)60 days Contractor, the Client, and KCDA waive Claims against each
after Final Acceptance. This requirement cannot be waived other for consequential damages arising out of or relating to this
except by an explicit written waiver signed by KCDA, the Agreement. This mutual waiver includes without limitation:
Client, and the Contractor. The pendency of a mediation
(calculated as the period from the written request for mediation .1 damages incurred by KCDA or the Client for
through the day following the mediation proceeding)shall toll rental expenses, for losses of use, income, profit,
these filing requirements. financing, business and reputation, and for loss of
management or employee productivity or of the
13.4 Notices and Claims. All notices and Claims services of such persons;and
shall be made in writing as required by the Agreement.
.2 damages incurred by the Contractor for
13.4.1 Any notice of a Claim of the Contractor principal and home office overhead and expenses
against KCDA or the Client and any Claim of the Contractor, including without limitation the compensation of
whether under the Agreement or otherwise, must be made personnel stationed there, for losses of financing,
pursuant to and in strict accordance with the applicable business and reputation, for losses on other projects,
provisions of the Contract Documents. Failure to comply with for loss of profit,and for interest or financing costs.
these requirements shall constitute waiver of the Claim. No act,
omission, or knowledge, actual or constructive, of KCDA, the This mutual waiver is applicable to all consequential damages
Client,or the A/E shall in any way be deemed to be a waiver of of any cause, including without limitation due to either party's
the requirement for timely written notice and a timely written termination in accordance with Article 20. Nothing contained
Claim unless KCDA, the Client, and the Contractor sign an in this Section 13.6 shall be deemed to preclude an award of
explicit, unequivocal written waiver approved by KCDA and liquidated damages, when applicable, in accordance with the
the Client's Board of Directors. requirements of the Contract Documents.
13.4.2 The fact that KCDA, the Client, and the 13.7 The Contractor(including Subcontractors of
Contractor may continue to discuss or negotiate a Claim that any tier) shall not in any event be entitled to damages arising
has or may have been defective or untimely under the Contract out of actual or alleged loss of efficiency; morale, fatigue,
shall not constitute waiver of the provisions of the Contract attitude,or labor rhythm;constructive acceleration;home office
Documents unless KCDA, the Client, and Contractor sign an overhead; expectant underrun; trade stacking; reassignment of
explicit, unequivocal written waiver approved by the Client's workers; concurrent operations; dilution of supervision;
board of directors. learning curve;beneficial or joint occupancy; logistics; ripple;
season change; extended overhead; profit upon damages for
13.4.3 The Contractor expressly acknowledges and delay;impact damages;or similar damages.
agrees that the Contractor's failure to timely submit required
notices or timely submit Claims has a substantial impact upon ARTICLE 14
and prejudices KCDA and the Client, including but not limited TIME
to the inability to fully investigate or verify the Claim,mitigate
damages, choose alternative options, adjust the budget, delete 14.1 Within seven days of executing the
or modify the impacted Work, and/or monitor time, cost and Agreement, the Contractor shall deliver any required bond to
quantities. For these and other reasons,the parties stipulate that the Client with a copy to KCDA; no Progress Payments shall
KCDA and the Client are prejudiced by the Contractor's failure be due until the bond is delivered.
to timely submit notices or Claims as required by the Contract
Documents. 14.2 If, through no fault of the Contractor or a
Subcontractor of any tier, the Work is delayed at any time in
13.5 Claims for Concealed or Unknown progress of the Work by changes ordered in the Work, by
Conditions. If conditions unknown to the Contractor are unanticipated general labor disputes, fire, unusual delay in
encountered at the site which are (1) subsurface or otherwise deliveries,abnormal adverse weather conditions not reasonably
concealed physical conditions that differ materially from those anticipatable, unavoidable casualties, delays caused by the
indicated in the Contract Documents or(2) unknown physical Client or its separate contractors, or any causes beyond the
conditions of an unusual nature, which differ materially from Contractor's control and for which it and its subcontractors of
those ordinarily found and generally recognized as inherent in any tier are not responsible, or by other causes which may
activities of the character provided for in the Contract justify delay, then the Contract Time shall be extended by
Documents, then the Contractor shall give written notice to Change Order to the extent the critical path is affected. The
KCDA and the Client promptly before conditions are disturbed Contractor (including Subcontractors) shall be entitled to
and in no event later than seven days after the first observance damages for delay, the total limited to the liquidated rate of
on the conditions. The Contractor shall make any Claim arising Section 2.3, only where KCDA or the Client's own actions or
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inactions were the actual, substantial cause of thedelay andpaymenttofor Work performed during the prior calendar
where the Contractor could not have reasonably avoided the month in addition to the agreed-upon amount, the Contractor
delay by the exercise of due diligence. If a delay was caused may submit to KCDA a separate written payment request
• - by the Contractor,a Subcontractor of any tier,or anyone acting specifying the exact additional amount due,the category in the
on behalf of any of them, the Contractor is not entitled to an Schedule of Values in which the payment is due, the specific
increase in the Contract Time or in the Contract Sum. Work for which the additional amount is due, and why the
additional payment is due.
14.3 THE TIMELY COMPLETION OF THIS
PROJECT IS ESSENTIAL TO KCDA AND THE CLIENT. 15.1.3 Payments to Subcontractors. No payment
KCDA and the Client will incur serious and substantial request shall include amounts the Contractor does not intend to
damages if Substantial Completion of the Work does not occur pay to a Subcontractor. If,after making a request for payment
within the Contract Time; however, it may be difficult if not but before paying a Subcontractor for its performance covered
impossible to determine the amount of such damages. by the payment request,the Contractor discovers that part or all
Consequently, this Agreement may include provisions for of the payment otherwise due to the Subcontractor is subject to
liquidated damages. KCDA and the Client's right to liquidated withholding from the Subcontractor for unsatisfactory
damages is not affected by partial completion, occupancy, or performance or other reasons,the Contractor may withhold the
beneficial occupancy. If this Agreement does not contain an amount as allowed under the subcontract, but it shall give the
agreed amount for liquidated damages, KCDA and the Client Subcontractor and KCDA and the Client written notice of the
may prove their actual damages. remedial actions that must be taken as soon as practicable after
determining the cause for the withholding but before the due
ARTICLE 15 date for the Subcontractor payment,and pay the Subcontractor
PAYMENTS AND COMPLETION within eight working days after the Subcontractor satisfactorily
completes the remedial action identified in the notice.
15.1 Progress Payments. Payments shall be
made as provided in Articles 3 and 4 of this Agreement. If 15.2 Prevailing Wages. Pursuant to RCW
Progress payments are specified,they will be made monthly for 39.12, the Contractor will not receive any payment until the
Work duly approved and performed during the calendar month Contractor and all Subcontractors have submitted a"Statement
preceding the application according to the following procedure. of Intent to Pay Prevailing Wage"to KCDA and the Client. The
statement must have the approval of the Industrial Statistician
15.1.1 Draft Application. Within the first five days of the Department of Labor and Industries before it is submitted
of each month, the Contractor shall submit to KCDA and the to KCDA and the Client. The Contractor and the respective
Client, for the Client's approval, a report on the current status Subcontractors shall pay all fees required by the Department of
of the Work as compared to the Progress Schedule and a draft Labor and Industries, including fees for the approval of the
itemized AIA Application for Payment for Work performed "Statement of Intent to Pay Prevailing Wages." Approved
during the prior calendar month. This shall not constitute a copies of the "Statement of Intent to Pay Prevailing Wages"
payment request. KCDA or the Client may request the must be posted where workers can easily read them.
Contractor to provide data substantiating the Contractor's right
to payment, such as copies of requisitions or invoices from 15.3 Progress payments. Unless the Client
Subcontractors. informs the Contractor that a payment will be withheld as
provided in Section 15.4,KCDA shall make progress payments
15.1.2 Payment Request. The Client shall review within 30 days of approval of the payment request by the Client.
and approve the draft Application for Payment, or state its
reasons for disapproval. Upon the Client's approval, and after 15.4 Withheld Payments. Payments may be
the Contractor has furnished all data requested, the Contractor withheld on account of(1) defective Work not remedied, (2)
may submit to KCDA a payment request in the agreed-upon claims filed by third parties, (3) failure of the Contractor to
amount, in the form of a notarized, itemized AIA Application make payments properly to Subcontractors or for labor,
for Payment for Work performed during the prior calendar materials or equipment or provide releases under
month. KCDA shall re-verify the amounts with the Client and, Section 11.3.1,(4)reasonable evidence that the Work cannot be
once verified and approved by the Client, will invoice the completed for the unpaid balance of the Contract Sum, (5)
Client, and KCDA shall make payment to Contractor from damage to KCDA, the Client, or another contractor, (6)
funds received from the Client. Payment from the Client to reasonable evidence that the Work will not be completed within
KCDA is a condition precedent to payment from KCDA to the the Contract Time and that the unpaid balance would not be
Contractor. Among other things,the Application shall state that adequate to cover actual or liquidated damages for the
prevailing wages have been paid in accordance with the prefiled anticipated delay, or (7) failure to carry out the Work in
statement(s) of intent to pay prevailing wages on file with accordance with the Contract Documents. When KCDA
KCDA and the Client and that all payments due Subcontractors intends to withhold all or part of a payment for any of the
from KCDA's prior payments have been made. The foregoing reasons, KCDA will provide the Contractor, within
submission of this Application constitutes a certification that eight working days after KCDA's receipt of the Application for
the Work is current on the progress schedule, unless otherwise Payment, written notification of the reasons that all or part of
noted on the Application. If the Contractor believes it is entitled
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• the payment is being withheld and what remedial actions the renewable to cover the period required by the Contract
Contractor must take to receive the withheld amount. Documents,
15.5 Substantial Completion. .5 other data establishing payment or satisfaction of
or protection (satisfactory to KCDA and the Client)
15.5.1 When the Contractor believes that the entire against all obligations, such as receipts, releases and
Work is Substantially Complete, it shall notify KCDA and the waivers of liens arising out of the Agreement,
Client in writing. When the Client agrees,the Client will issue satisfactorily demonstrating to KCDA and the Client
a Certificate of Substantial Completion. Substantial that the claims of Subcontractors and laborers who
Completion is the stage in the progress of the Work when the have filed claims have been paid,
construction is sufficiently complete, in accordance with the
Contract Documents, so the Client can fully utilize the Work .6 pursuant to RCW 39.12.040, an "Affidavit of
(or the designated portion thereof) for the use for which it is Wages Paid" from the Contractor and from each
intended. All Work other than incidental corrective or punchlist Subcontractor certified by the Industrial Statistician of
work and final cleaning shall have been completed. The Work the Department of Labor and Industries,with fees paid
is not Substantially Complete if all systems and parts affected by the Contractor or Subcontractor,
by the Work are not usable, if an occupancy permit(temporary
or final)has not been issued,or if utilities affected by the Work .7 a certified statement that the Contractor has closed
are not connected and operating normally. The fact that the all necessary permits or otherwise met the
Client may use or occupy the Work or designated portion requirements of all governing jurisdictions related to
thereof does not indicate that the Work is Substantially this Project(including,without limitation,city/county
Complete, nor does such occupation toll or change any building departments, health districts and utility
liquidated damages due KCDA. districts; attach a copy of each of these closed or
signed-off permits),
15.5.2 Immediately before partial or complete
occupancy, the Client will schedule an inspection tour of the .8 all warranties,guarantees, certificates, spare parts,
area to be occupied. A representative of KCDA and/or the specified excess material, and other documents or
Client,A/E and Contractor will jointly tour the area and record items required by the Contract Documents,and
items still remaining to be fmished and/or corrected. The
Contractor shall supply and install any items missed by the .9 a hard copy of the "record" drawings and
inspection but required or necessary for Final Completion as a specifications, delivered in a clear, clean and legible
part of the Contract Sum, notwithstanding their not being condition.
recorded during the inspection tour.
If any Subcontractor of any tier refuses to furnish a
15.6 Final Payment. Pursuant to RCW 60.28, release or waiver required by KCDA of the Client,KCDA may
completion of the Contract Work shall occur after the retain in the fund, account, or escrow funds such amount as to
Contractor has notified KCDA and the Client in writing that the defray the cost of foreclosing the liens of such claims and to pay
Work has been concluded and submits the items listed below to attorneys' fees,the total of which shall be no less than 150%of
KCDA and the Client,any required occupancy permit has been the claimed amount. If any such lien remains unsatisfied after
issued, and the Client's Board formally accepts the Project all payments are made,the Contractor shall refund to KCDA all
("Final Acceptance"). Final Payment shall not become due moneys that the latter or the Client may be compelled to pay in
until after Final Acceptance. Before Final Acceptance, the discharging such lien, including all costs and reasonable
Contractor must have submitted the following to the Client: attorneys' fees.
.1 An affidavit that all payrolls, Subcontractors, bills Final payment shall be made pursuant to RCW 60.28
for materials and equipment, and other indebtedness after the Contractor has properly submitted certificates from the
connected with the Work for which the Client or its Department of Revenue, the Department of Labor and
property might in any way be responsible or Industries and, pursuant to RCW 50.24, a certificate from the
encumbered,have been paid or otherwise satisfied, Department of Employment Security.
.2 consent of surety to final payment, 15.7 Waivers.
.3 a certificate evidencing that insurance required by 15.7.1 Final Payment by KCDA. The making of
the Contract Documents to remain in force after final final payment shall constitute a waiver of claims by KCDA and
payment is currently in effect and will not be canceled the Client except those arising from (1) liens, claims, security
or allowed to expire until at least 30 days'prior written interests, or encumbrances arising out of the Agreement and
notice has been given to KCDA and the Client, unsettled; (2) failure of the Work to comply with the
requirements of the Contract Documents; or (3) terms of
.4 a written statement that the Contractor knows of no warranties required by the Contract Documents or law.
substantial reason why the insurance will not be
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15.7.2 Final Payment to Contractor. Acceptance of promptly pay(and secure the discharge of any liens asserted by)
final payment by the Contractor shall constitute a waiver of all persons properly furnishing labor, equipment, materials or
Claims except those previously made in writing and identified other items in connection with the performance of the Work
" in writing as unsettled on the final Application for Payment. (including, but not limited to, any Subcontractors). The
Contractor shall furnish to the Client such releases of claims
15.7.3 Change Orders. The execution of a Change and other documents as may be requested by the Client from
Order shall constitute a waiver of Claims by the Contractor time to time to evidence such payment (and discharge). The
arising out of the Work to be performed or deleted pursuant to Client may,at its option,withhold payment, in whole or in part,
the Change Order, except as specifically described in the to the Contractor until such documents are so furnished. The
Change Order. If the Contractor adds to a Change Order or any Contractor shall indemnify and hold harmless the Client from
other document a reservation of rights that has not been initialed any liens,including all expenses and attorneys' fees.
by KCDA and the Client, all the amounts previously agreed
shall be considered disputed and not yet payable unless the ARTICLE 16
costs are re-negotiated or the reservation is withdrawn or PROTECTION OF PERSONS AND PROPERTY
changed in a manner satisfactory to and initialed by KCDA and
the Client. If KCDA makes payment for a Change Order or an 16.1 The Contractor shall have the right to control
Application for Payment that contains a reservation of rights not and shall be solely responsible for, and neither KCDA, the
initialed by KCDA and the Client to indicate agreement with Client, nor the A/E shall have responsibility for, all aspects of
• the reservation, and if the Contractor accepts such payment, safety, including initiating, maintaining, and supervising all
then the reservation of rights shall be deemed waived, safety precautions and programs in connection with the
withdrawn,and of no effect. performance of the Agreement. The Contractor shall take
reasonable precautions for safety of, and shall provide
15.8 Retainage. reasonable protection to prevent damage, injury or loss to (1)
employees on the Work and other persons who may be affected
15.8.1 Progress Payments: thereby; (2) the Work and materials and equipment to be
incorporated therein; and (3) other property at the site or
.1 Pursuant to RCW 60.28, KCDA will reserve 5% adjacent thereto. The Contractor shall maintain the Work site
from the moneys the Contractor earns on estimates and perform the Work in a manner that meets statutory and
during the progress of the Work, to be retained as a common-law requirements for the provision of a safe place to
trust fund for the protection and payment of the claims work. This requirement shall apply continuously and not be
of any person arising under the Agreement and the limited to working hours.
state with respect to taxes imposed pursuant to Title 82
RCW which may be due from the Contractor. 16.2 The Contractor shall give notices and comply
with applicable laws, ordinances,rules,regulations and lawful
.2 The moneys reserved may, at the option of the orders of public authorities bearing on safety of persons and
Contractor, be (1) retained in a fund by KCDA until property and their protection from damage,injury,or loss. The
45 days following Final Acceptance; or(2)deposited Contractor shall promptly remedy damage and loss to property
by KCDA in an interest-bearing account in a bank, at the site caused in whole or in part by the Contractor, a
mutual savings bank, or savings and loan association, Subcontractor of any tier, or anyone directly or indirectly
not subject to withdrawal until 45 days following Final employed by any of them, or by anyone for whose acts they
Acceptance, with interest to the Contractor; or (3) may be liable and for which the Contractor is responsible,
placed in escrow with a bank or trust company until 45 except for damage or loss attributable to acts or omissions of
days following the Final Acceptance, by KCDA's KCDA,the Client, or A/E or by anyone for whose acts any of
joint check to the bank or trust company and the them may be liable, and not attributable to the fault or
Contractor, to be converted into bonds and securities negligence of the Contractor or a Subcontractor of any tier. The
chosen by the Contractor, approved by KCDA, and foregoing obligations of the Contractor are in addition to the
held in escrow, with interest on the bonds and Contractor's obligations under Section 10.12.
securities paid to the Contractor as it accrues.
16.3 The Contractor shall not be required to
.3 If moneys are retained from the Contractor, it may perform without consent any Work relating to asbestos or
retain payment of not more than 5%from the moneys polychlorinated biphenyl ("PCB") unless specifically required
earned by any Subcontractor, provided that the by the Contract Documents.
Contractor pays interest to the Subcontractor at the
same interest rate it receives from its reserved funds. 16.4 The Contractor shall bear the risk of any loss,
damage or destruction of its own property, including without
15.9 Warranty of Title. The Contractor warrants limitation its tools, trailers and equipment, whether rented or
and guarantees that title to Work, materials and equipment owned, to the extent that they will not be incorporated in the
covered by an Application for Payment, whether incorporated Work. Any insurance provided by the Client will not cover any
in the Project or not, will pass to the Client no later than the such loss,damage or destruction.
time of payment, free and clear of liens. The Contractor shall
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_ I
16.5 If the scope of the Work requires the applicable to the Contractor's obligations under
Contractor to perform Work relating to hazardous materials,the Section 10.12.
Contractor shall be responsible to take all reasonable
• precautions to prevent foreseeable bodily injury or death .5 In addition, the Contractor shall maintain a true
resulting from such materials or substances, and to dispose of umbrella policy that provides excess limits over the
such materials as required by the Contract Documents and all primary layer,in an amount not less than$2,000,000.
applicable state and federal laws and regulations. The
Contractor shall defend, indemnify, and hold harmless the 17.1.2 The insurance described above shall include
Client, its consultants, the A/E, and their respective agents, coverage for underground,collapse and explosion exposures.
employees, consultants, successors and assigns from and
against any and all claims to the extent of the Contractor's 17.1.3 In addition,the Contractor shall purchase and
failure to abide by such Contract Documents and all applicable maintain insurance for claims under workers' compensation
state and federal laws and regulations. (industrial insurance), disability benefit and other similar
employee benefit acts in the State statutory amount and
ARTICLE 17 Employer's Liability with coverage of at least
INSURANCE AND BONDS $250,000/$500,000.
17.1 Contractor's Liability Insurance. 17.1.4 Before commencing the Work or exposure to
loss can occur, and, in any event, within ten days after KCDA
17.1.1 The Contractor shall purchase from and has issued its notice of intent to award contract,the Contractor
maintain during the life of this Agreement,at its own cost in a shall furnish KCDA and the Client with Certificates of
company or companies admitted to do business in the State of Insurance,in duplicate,as evidence of all insurance required by
Washington,possessing a Best's policy holder's rating of A-or the Contract Documents. All policies and certificates must be
better and a financial rating of no less than VII,and reasonably signed copies and shall contain provision that coverages
acceptable to KCDA and the Client, an occurrence-based afforded under the policies cannot be materially altered,
Commercial General Liability Insurance Policy which shall allowed to expire or canceled without first giving 45 days
provide bodily injury and property damage liability on the written notice by certified mail to KCDA and the Client. The
Contractor's operations, including its Subcontractors of any Contractor shall furnish to KCDA and the Client copies of any
tier; owned, non-owned and hired vehicles; and on work the subsequently issued endorsements amending, modifying,
Contractor may subcontract or sublet to others; and on the altering,or restricting coverage of limits.
indemnity provisions of this Agreement. This insurance will
name KCDA and the Client and their employees as additional 17.1.5 Coverage shall be maintained without
insureds per Additional Insured Owner's (Form B) for Work interruption from the date of commencement of the Work until
performed under this Agreement. The Contractor's policy shall the date of Final Acceptance, except for any coverage required
be designated primary coverage for both defense and to be maintained after Final Acceptance. Completed operations
indemnity, and any KCDA or Client policies excess. Such coverage shall remain in force for three years after Final
limits of liability insurance shall have per project general Acceptance.
aggregate provisions and shall not be less than the following:
17.1.6 If KCDA or the Client is damaged by the
.1 $1,000,000 Combined Single Limit protection for failure of the Contractor to maintain any of the above insurance
both bodily injury and property damage liability per or to so notify KCDA and the Client,than the Contractor shall
occurrence and$2,000,000 general aggregate; bear all costs properly attributable thereto. KCDA MAY
WITHHOLD PAYMENT PENDING RECEIPT OF ALL
.2 $1,000,000 per accident for bodily injury liability CERTIFICATES OF INSURANCE. Failure to withhold
including sickness, disease or death and property payment shall not constitute a waiver.
damage liability because of damage to or destruction
of property of others, including loss of use thereof 17.1.7 KCDA's specification or approval of the
arising out of the operation of automobiles. insurance in this Agreement or of its amount shall not relieve or
decrease the liability of the Contractor under the Contract
.3 $1,000,000 for personal injury liability coverage Documents or otherwise. Coverages are the minimum to be
included and defined in the Commercial General provided and are not limitations of liability under the Contract,
Liability insurance policy for damages which are indemnification, or applicable law provisions. The Contractor
sustained by (1) a person as a result of an offense may, at its expense, purchase larger coverage amounts or
directly or indirectly related to employment of such additional insurance.
person by the Contractor,or(2)by another person.
17.2 Property Insurance.
.4 $1,000,000 for claims involving blanket contractual
liability insurance (included and defined in the 17.2.1 The requirements for property insurance are
Commercial General Liability Insurance Policy) addressed in Article 6 above.
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17.3 Waivers of Subrogation. 18.3 Nothing contained in this Article shall be
construed to establish a period of limitation with respect to
17.3.1 KCDA,the Client,and the Contractor waive other obligations which the Contractor might have under the
•
• all rights against each other and any of their subcontractors of Contract Documents. Establishment of the time period of one
any tier, the A/E, their consultants, separate contractors year as described above relates only to the specific obligation
described in Article 12 (if any), and any of their respective of the Contractor to correct the Work and has no relationship to
agents and employees, for damages caused by fire or other the time within which the obligation to comply with the
causes of loss to the extent covered by property insurance Contract Documents may be sought to be enforced, nor to the
obtained pursuant to Articles 6 and 17.2 or other property time within which proceedings may be commenced to establish
insurance applicable to the Work, except such rights as they the Contractor's liability with respect to the Contractor's
have to proceeds of such insurance held by the Client as obligations other than specifically to correct the Work.
fiduciary. KCDA and the Client do not waive their subrogation
rights to the extent of the Client's property insurance on ARTICLE 19
structures or portions of structures that do not comprise the MISCELLANEOUS PROVISIONS
Work. A waiver of subrogation shall be effective as to a person
or entity even though that person or entity would otherwise 19.1 Applicable Law and Venue. The
have a duty of indemnification,contractual or otherwise,did not Agreement shall be governed by the laws of the State of
pay the insurance premium directly or indirectly, and whether Washington,without regard to its choice of law provisions. The
or not the person or entity had an insurable interest in the exclusive venue for any litigation regarding this Agreement
property damaged. shall be in the county in which the Project is located.
17.4 Payment and Performance Bond. 19.2 Statutes. The Contractor shall abide by the
provisions of all applicable Washington statutes. The statutes
17.4.1 Pursuant to RCW 39.08, the Contractor is referenced in the Contract Documents are not meant to be a
required to submit payment and performance bonds secured complete list and should not be relied upon as such.
from a surety company licensed to do business in the State of
Washington. The Contractor shall pay for the bonds in the full 19.3 Contractor Registration and Related
amount of the Contract Sum plus sales tax. Within seven days Requirements. Pursuant to RCW 39.06, the Contractor shall
of entering into the Agreement,the Contractor shall deliver two be registered or licensed as required by the laws of the State of
copies of the bond(including the original bond)to KCDA and Washington, including but not limited to RCW 18.27. The
one copy each to the Client and the A/E. The price of the bond Contractor shall: have a current state unified business identifier
will be added to the total contract amount to be paid by the number;have industrial insurance coverage for the Contractor's
Client. KCDA MAY DECLINE TO ENTER INTO THE employees working in Washington as required in Title 51
CONTRACT IF EVIDENCE OF BONDABILITY IS NOT RCW; have an employment security department number as
RECEIVED, AND THE CLIENT MAY WITHHOLD ITS required in Title 50 RCW; have a state excise tax registration
NOTICE TO PROCEED AND/OR WITHHOLD PAYMENT number as required in Title 82 RCW, and; not be disqualified
TO THE CONTRACTOR UNTIL SUCH SURETY BOND IS from bidding on any public works contract under
RECEIVED. RCW 39.06.010 (unregistered or unlicensed contractors) or
RCW 39.12.065(3)(prevailing wage violations).
ARTICLE 18
CORRECTION OF WORK 19.4 Law Against Discrimination. Contractor
shall comply with pertinent statutory provisions relating to
18.1 The Contractor shall promptly and within at public works of RCW 49.60.
least fourteen (14) days of notice from the Client or KCDA
correct Work rejected or failing to conform to the requirements 19.5 Provisions for Aged and Handicapped
of the Contract Documents at any time through a period of one Persons. Contractor shall comply with pertinent statutory
year from the date of Substantial Completion of the Agreement provisions relating to public works of RCW 70.92.
or by terms of a longer manufacturer's warranty or an
applicable special warranty required by the Contract 19.6 Safety Standards. Contractor shall comply
Documents. The provisions of this Article apply to Work done with pertinent provisions of Chapter 296-155 WAC, "Safety
by Subcontractors of any tier as well as to Work done by direct Standards for Construction Work."
employees of the Contractor.
19.7 Unemployment Compensation. Pursuant
18.2 If the Contractor fails to correct Work that is to RCW 50.24 in general and RCW 50.24.130 in particular,the
not in accordance with the requirements of the Contract Contractor shall pay contributions for wages for personal
Documents or fails to carry out the Work in accordance with services performed under this Agreement or arrange for a bond
the Contract Documents, KCDA and/or the Client,by a written acceptable to the commissioner.
order,may order the Contractor to stop the Work,or any portion
thereof,until the cause for such order has been eliminated. 19.8 Drug-Free Workplace. The Contractor and
all Subcontractors shall fully comply with all applicable federal,
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20122115.2
state, and local laws and regulations regarding drug-free or the Client)the whole or any portion of the Work for cause,
workplace, including the Drug-Free Workplace Act of 1988. including but not limited to the following circumstances:
Any person not fit for duty for any reason, including the use of
alcohol, controlled substances, or drugs, shall immediately be .1 the Contractor fails to prosecute the Work or any
removed from the Work. portion thereof with sufficient diligence to ensure the
Completion of the Work within the Contract Time;
19.9 Tobacco-Free Environment. Smoking or
use of any kind of lighted pipe, cigar, cigarette or any other .2 the Contractor is in material default of or materially
lighted smoking equipment, material or smokeless tobacco breaches any provisions of this Agreement;
products,including vaping,is prohibited on all Client property.
.3 the Contractor is adjudged bankrupt, makes a
19.10 Asbestos Removal. To the extent this general assignment for the benefit of its creditors,or if
Project involves asbestos removal,the Contractor shall comply a receiver is appointed on account of its insolvency;
with RCW 49.26 and any provisions of the Washington
Administrative Code promulgated thereunder. .4 the Contractor fails to supply a sufficient number
of properly skilled workers or proper materials;
19.11 Assignment. The Contractor shall not let,
delegate duties under,assign or transfer this Agreement,or any .5 the Contractor fails to make prompt payment to
interest in it or part of it, without the prior written consent of Subcontractors or for materials or labor;
KCDA and the Client.
.6 the Contractor materially disregards laws,
19.12 Weapons. The Contractor and its ordinances, rules, regulations or orders of any public
employees, agents, and Subcontractors of any tier shall not authority having jurisdiction;or
bring onto the Project site or onto any Client property any
firearm or any other type of weapon described in either .7 the Contractor fails to comply with the provisions
RCW 9.41.280(1)or RCW 9.41.250. Any person violating this of RCW 28A.400.330 by permitting a worker on the
Section shall immediately be removed from the Work,and such Project having contact with children who has been
a violation shall be grounds for a termination of this Agreement convicted of or pled guilty to a felony crime involving
for cause at the Client's discretion. children as described in Section 10.3.
19.13 Contaminated Properties. To the extent 20.3 Termination for Convenience by Client. The
this Project involves the remediation of contaminated property, Client may,at any time upon seven days'written notice to the
the Contractor shall comply with RCW 64.44 and 70.105D and Contractor,terminate(without prejudice to any right or remedy
any provisions of the Washington Administrative Code of the Client or KCDA)the whole or any portion of the Work
promulgated thereunder, including the use of authorized for the convenience of KCDA and the Client. The Client shall
contractors as provided in RCW 64.44.060. be liable to Contractor only for those costs reimbursable to
Contractor in accordance with the following:
19.14 Disposal of Materials. To the extent this
Project involves the remediation of contaminated property,the .1 The amount due under Articles 4 and 15 of this
Contractor shall comply with all applicable requirements of Agreement for the performance of the Work
RCW 70.95 and any provisions of the Washington terminated;
Administrative Code promulgated thereunder.
.2 Other pre-approved costs, consistent with Section
ARTICLE 20 13.2,necessary and reasonably incurred in connection
TERMINATION OF THE CONTRACT with the termination of Work.
20.1 Termination for Cause by Contractor. If The total sum to be paid to the Contractor under this Section
KCDA fails to make payment for a period of 60 days through 20.3 shall not exceed the Contract Sum as reduced by the
no fault of the Contractor and has been given approval by the amount of payments otherwise made.
Client,the Contractor may,upon seven additional days'written
notice to KCDA, terminate the Agreement and recover from 20.4 Effects of Termination.
KCDA payment for all Work properly executed and for proven
loss with respect to materials, equipment, tools, and 20.4.1 Unless the Client directs otherwise, after
construction equipment and machinery, including Fees receipt of a Notice of Termination from the Client pursuant to
applicable thereto. Section 20.2 or 20.3,the Contractor shall promptly:
20.2 Termination for Cause by Client. The .1 stop Work under the Agreement on the date and as
Client may, upon seven days'written notice to the Contractor, specified in the Notice of Termination;
terminate(without prejudice to any right or remedy of KCDA
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20122115.2
.2 place no further orders or subcontracts for .4 the agreed price for or the proceeds of sale of any
materials, equipment, services or facilities, except as materials, supplies or other things acquired by the
may be necessary for completion of any portion of the Contractor or sold, pursuant to the provisions of
•• Work that is not terminated; Section 20.4.1.7, and not otherwise recovered by or
credited to KCDA.
.3 procure cancellation of all orders and subcontracts,
upon terms acceptable to the Client, to the extent that 20.4.3 If(and only it) the termination pursuant to
they relate to the performance of Work terminated; Section 20.3 is partial, the Contractor may file a Claim for an
equitable adjustment of the price or prices specified in the
.4 assign to the Client all of the right,title and interest Agreement relating to the continued portion of the Agreement.
of the Contractor under all orders and subcontracts, in The Contractor must assert any Claim for an equitable
which case the Client shall have the right, in its adjustment under this subparagraph within twenty-one days
discretion,to settle or pay any or all claims arising out from the effective date of the Termination.
of the termination of such orders and subcontracts;
20.4.4 The Contractor shall refund to KCDA any
.5 with the Client's approval, settle all outstanding amounts KCDA paid to the Contractor in excess of costs
liabilities and all claims arising out of such termination reimbursable under Section 20.3.
of orders and subcontracts not assigned to the Client;
20.4.5 The damages and relief from termination by
.6 transfer title and deliver to the entity or entities the Client specifically provided in Article 20 shall be the
designated by the Client the fabricated or unfabricated Contractor's sole entitlement in the event of termination.
parts, Work in process, partially completed supplies
and equipment, materials, parts, tools, dies,jigs and 20.4.6 When this Agreement refers to a termination,
other fixtures, completed Work, supplies and other it is understood that the termination is of this Agreement, the
material produced as part of,or acquired in connection Purchase Order, and all related contract documents, but not of
with the performance of,the Work terminated,and the any contract between KCDA and the Contractor that is not
completed or partially completed plans, drawings,
specific to this Project and this Client.
information and other property related to the Work; End of Section
.7 use its best efforts to sell any property of the types
referred to in Section 20.4.1.6. The Contractor may
acquire any such property under the conditions
prescribed by and at a price or prices approved by the
Client, and the proceeds of any such transfer or
disposition may be applied in reduction of any
payments to be made by the Client to the Contractor;
.8 take such action as may be necessary or as directed
by the Client to preserve and protect the Work and
property related to this Project in the possession of the
Contractor in which the Client has an interest;and
.9 continue performance only to the extent not
terminated.
20.4.2 In arriving at any amount due the Contractor
after termination,the following deductions shall be made:
.1 all unliquidated advance or other prior payments on
account made to the Contractor applicable to the
terminated portion of the Agreement;
.2 any claim which KCDA or the Client may have
against the Contractor;
.3 an amount necessary to protect KCDA and the
Client against outstanding or potential liens or claims;
and
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