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HomeMy WebLinkAbout10/16/2013 AGENDA s e • CITY COUNCIL 345 6th Street, Suite 600, Bremerton, WA 98337 ❑ Phone (360) 473 -5280 OCTOBER 16, 2013 CITY COUNCIL MEETING AGENDA 1 BRIEFING 5 00 — 5 30 P M in COUNCIL CONFERENCE ROOM 603 A General Council Business 2 CALL TO ORDER 5 30 P M in FIRST FLOOR CHAMBERS A Pledge of Allegiance B Invocation 3 MAYOR'S REPORT 4 INFORMATION ITEMS A Bremerton Police Department Monthly Update — Police Chief Steve Strachan B 3 rd Quarter Report from Kitsap Economic Development Alliance (KEDA) — John Powers, Executive Director, Kitsap Economic Development Alliance 5 PUBLIC RECOGNITION 6 CONSENT AGENDA A Claims & Check Register B Minutes of Meeting — October 2, 2013 C Minutes of Budget Workshop — October 7, 2013 D Minutes of Study Session — October 9, 2013 E Ordinance No 5225 amending Ch 9 24 of the Bremerton Municipal Code (BMC) entitled "Prostitution ", and creating a new section Ch 9 24 060 relating to "Loitering" F Contract Award to Lakeside Industries for Construction of the Belfair Valley Road and Lake Flora Road Preservation Project G Authorizing transfer of $40,000 in Real Estate Excise Tax (REET) to the General Fund, and approving contract with King County Directors Association (KCDA) for Pendergast Ball Field Drainage Improvements 7 GENERAL BUSINESS A Overview of Kitsap Conference Center Expansion Project Implementation (Items 713-7F) B Interlocal Agreement with the Kitsap Public Facilities District (KPFD) for funding of the Kitsap Conference Center Expansion Project C Lease Agreement with Kitsap Transit for Expansion of the Kitsap Conference Center D Contract Award to Jones & Roberts, Inc for Construction of the Kitsap Conference Center Expansion Project E Contract Award to ThyssenKrupp Elevator Americas for Elevator Improvements related to the Kitsap Conference Center Expansion Project F Professional Services Agreement with RiceFergusMiller Architects for Construction Administration Services for the Kitsap Conference Center Expansion Project 8 COUNCIL MEMBER REPORTS 9 ADJOURNMENT OF CITY COUNCIL BUSINESS MEETING ® Americans with Disabilities Act (ADA) accommodations provided upon request Those requiring special accommodations please contact the City Clerk at (360) 473 -5323 by noon on the day preceding the Meeting F A� OCTOBER 24, 2013 FOOD DAY PROCLAMATION WHEREAS, the health and well -being of our citizens is of primary concern for the City of Bremerton, and WHEREAS, promoting safer, healthier diets is a critical factor in improving citizens' overall health, and WHEREAS, supporting sustainable family farms and local agriculture benefits the local economy, and WHEREAS, obtaining fair pay and safe conditions for food and farm workers is beneficial for both the producer and consumer so that the food we produce and consume is safe and fair for all, and WHEREAS, expanding access to food and reducing hunger is of critical importance to aid those who live in food deserts, and WHEREAS, reforming factory farms to protect the environment and farm animals is necessary to sustain future generations, NOW, THEREFORE, I, Patty Lent, Mayor of the beautiful City of Bremerton, do hereby proclaim Thursday, October 24, 2013 as FOOD DAY in the City of Bremerton, and I urge all citizens to participate in the activities planned SIGNED this 16 day of October 2013 Mayor Patty Lent P ro damatf on WHEREAS, Bremerton, Washington is a community that acknowledges that a special vibrancy exists within the entire community when its individual citizens collectively "go the extra mile" in personal effort, volunteerism, and service, and WHEREAS, Bremerton is a community that encourages its citizens to maximize their personal contribution to the community by giving of themselves wholeheartedly and with total effort, commitment, and conviction to their individual ambitions, family, friends, and community, and WHEREAS, Bremerton is a community that chooses to shine a light on and celebrate individuals and organizations within its community who "go the extra mile" in order to make a difference and lift up fellow members of their community, and WHEREAS, Bremerton acknowledges the mission of the Extra Mile America Foundation to create 100 Extra Mile cities and states in America and is proud to support "Extra Mile Day" on November 1, 2013, NOW THEREFORE, 1, Mayor Patty Lent of Bremerton, do hereby proclaim November 1, 2013 to be Extra Mile Day I urge each individual in our community to take time on this day to not only "go the extra mile" in his or her own life, but to also acknowledge all those around who are inspirational in their efforts and commitment to make their organizations, families, community, country, or world a better place SIGNED this 1st day of October 2013 Patty Lent, Mayor Ll A uE THE BREMERTON POLICE DEPARTMENT Cordially invites you to loin us as we honor The men and women of,the ' Bremerton Police Department PRESENTED BY: POLICE STEVEN D. STRACHAN Officer Jordan Ede Oath of Office Sworn in by Judge James Docter Recognizing 25 Years of Dedicated and Loyal Service Sergeant Kevin M Crane Sergeant Randy D Olson Captain Thomas E Wolfe The ceremony will be located on the first floor of The Norm Dicks Government Center In the Bremerton City Council Chambers At 345'— 6' Street Bremerton, Washington October 16, 2013 at 5:30 p.m. y 3 rd Quarter Economic Development Activlty Re Kitsa City of Bremerton July 1, 2013 to Sept 30, 2013 Economic Development Alliance Kitsap County Performance Roll -Up Q3 I Total 2013 Business Retention & Kitsap Company Visits /Presentations 29 137 Expansion Number of Companies Assisted (includes PTAC) 54 146 Number of Companies Referred 12 66 Number of Companies Closed 0 0 Number of Custom Reports 6 46 Jobs Represented (if known) 2432 Jobs Lost Not reported Business Recruitment Number of Companies Contacted 4 123 New Cases 2 12 Continuing Cases (from previous quarters) 2 Cases Discontinued or Lost 1 3 Trade Shows Attended 0 5 Number of (new) Companies Visiting Kitsap 2 2 Number of Companies Recruited (committed) 1 1 Potential Jobs — open cases 85 Economic Research & Custom Reports, Demographics & Real Estate 28 66 Inquiries Unique Visitors to KEDA Website 15,640 48,163 Business Start up Kit Downloads 85 142 KEDA Originated Studies & Reports 11 25 Community Relations Events (sponsored, co- sponsored or hosted) 4 16 Speeches & Presentations 17 40 KitsapConnected Work +Life views 476 6397 E -News & Print Communications (Incl PR, Columns) 22 91 20/20 Business Climate Workforce & Education ✓ Chair of Olympic College Workforce Development Advisory Committee Policy & Initiatives ✓ Participating member of Olympic Workforce Development Council ✓ Participating member of West Sound Leadership Education Consortium Transportation & ✓ Participating director of Economic Development District board Infrastructure Small Business Support ✓ PTAC (Procurement Technical Assistance Center) classes — (see list under Recruitment and BRE additional activities) ✓ Site visits (ongoing) to learn more about Kitsap companies and provide assistance as needed ✓ Referrals to partners for additional assistance as indicated per case ✓ Meeting with Kitsap business assistance organization partners to plan county participation in Global Entrepreneurship Week Financing & Incentives ✓ Identify resources in KEDA e- newsletters, FaceBook and Twitter posts Government as a Partner ✓ Continued participation and presentations to Kitsap Regional Coordinating Council ✓ Collaboration with KRCC regarding local procurement efforts Industry Focus ✓ PTAC (Procurement Technical Assistance Center) classes ✓ One -on -one PTAC counseling in KEDA office ✓ Co -Chair Kitsap Aerospace and Defense Alliance ✓ Initial member of Washington Aerospace Partnership Board of Directors ✓ Participation in regional Defense Partnership discussions Collaborative Marketing ✓ Added new video Living to KltsapConnected website ✓ KADA website and social media updates Cumulative totals not applicable as data may duplicate from one quarter to another Page 1 1 M � � rd 3 Quarter Economic Development Activity Report K its City of Bremerton July 1, 2013 to Sept 30, 2013 Economic Development PAHiance Assistance and Inquiries by Location, Type of assist Bainbridge * Bremerton * Kitsap County Port Orchard * Poulsbo BRE /PTAC 5 16 18 4 11 Recruitment 0 4 4 3 2 Inquiries & Reports 1 10 18 19 9 14 TOTALS is 38 41 1 16 27 *Indicates within city limits Krtsap's Changing Economy Feb 2012 71 Busine Start Up Guide 85 Xitsapeda.org Downloads 2013 Top Employers ( Pr ivat e) 90 Q3 2013 ; 2011 Top Employers (Public) 124 Seaport-e Info (PTAC) M 135 Organic Foods Industry Snapshot 165 Last Mile Report Backgrounder 174 2011 Top Employers (Private) 203 Kitsap County Taxes 235 CapabuPty Statement Worksheet (PTAC) 1879 BUSINESS ATTRACTION ACTIVITY .. 9/5/2013 Remodel NK Q3 Inquiry client seeking detailed data to relocate business from Oly Peninsula provided info as requested after phone call 9/5/2013 Australia Q3 Inquiry Client seeking information on potential expansion to region provided details and data on Kitsap 8/5/2013 Project 200 Acres Q3 Lead Firm seeking 200+ acre sites with rail, nat gas, heavy water and'wastewater usage No site at Port of Bremerton 7/3/2013 Bremerton Retail Q3 Lead followed up at request of Bremerton mayor regarding retail opps in city with chain retailer 6/18/2013 Project Aero 6 Q2 2013 Lead from Paris Air Show, will do follow up re expansion 5/10/2013 Project Aero 8 Q2 2013 lead from KADA member, follow up at Paris Air Show re potential expansion to NW Q3 follow up re potential visit in fall Page 12 ` 3 rd Quarter Economic Development Activity Report Kitsct City of Bremerton July 1, 2013 to Sept 30, 2013 Economic Development A Alliance OTHER RECRUITMENTACTIVITy • Announced recruitment of California composites company — Omohundro --to Port Orchard At quarter end, company was employing 25 with plans to employ up to 50 at year end • Added new video to KltsapConnected org website -- Living o Continued promotion via news releases, twitter and FaceBook • Continued follow up with contacts made at Paris Air Show • Hosted /coordinated two (2) PTAC Workshops • Prime Contractor Outreach— Working as a Subcontractor Part 3 • Government Contracting 101 • Provided support and /or coordination for PTAC related events o DOD Council • Co- hosted Pacific NW Defense Symposium (September 2013) • Continued updates of KEDA website, KEDA FaceBook page and KEDA Twitter account BUSINESS RETENTION AND EXPANSION ACTIVITY SITE VISITS /COUNSELING SESSIONS NOTE In the following posts, PTAC stands for Procurement Technical Assistance Center ini tial c name sector dote Activity 9/11/13 Defense 37 defense Q3 participated in event and panel regarding industry needs and potential growth 9/11/13 Defense 36 defense Q3 participated in event and panel regarding industry needs and potential growth 8/14/13 PTAC 57 retail Q3 client participated in panel regarding sequestration and business climate 8/9/13 Construction Services 37 construction Q3 PTAC client attended workshops, followed up with review of line card working with client regarding proposal templates 8 /1/13 Technology 4 technology Q3 Met with client to learn about capabilities 7/22/13 PTAC 55 retail Q3 2013 Client attended PTAC class and requested follow up regarding selling to specific commands Provided links as appropriate 6/7/13 Non Profit 10 retail Q2 2013 Met with board member seeking insight for next phase of organization's operations Q3 provided contact for real estate as requested 1/16/13 Accommodation 1 accommodations Attended Selling to the Navy workshop, Attended Govt 101 workshop Q3 requested details on updating SAM sent as requested 7/19/12 Niche 10 manufacturing Client seeking assistance for larger space to accommodate two other companies who would utilize new products from diversified line Provided list of potential sites also follow up on funding options Aug Researched permit options for budding client interested in purchasing Referred to DCD Oct Client seeking assistance regarding building purchase and power requirements Q12013 Attended Govt 101 workshop, client notes they are moving to Bremerton with purchase of budding, will also bring 2 3 other businesses to space with them, thanked KEDA for their assistance re budding, Q2 2013 Client seeking info on social media marketing and arts community for new enterprise, followed up with links and contacts for both, client called re new location is up and running with new hires followed up with news release contact list Q3 provided media list and insight for sending news release on new product line Page 13 3 rd Quarter Economic Development Activity Report Kits City of Bremerton July 1, 2013 to Sept 30, 2013 Economic Development Alliance 9/9/11 Business Services 3 financial Met with client re business climate growth needs Follow up as needed Nov follow up meeting Q4 2012 participated in focus group for client Q12013 meeting with management re trends and 2013 forecast Q2 PTAC assistance re lien holdings Q3 client participated in briefing re regional climate 2118/11 Construction 14 construction 2011 counseling re graduation from 8a program referrals on potential opportunities Q2 2012 Attended synopsis or solicitation?" workshop Attended EHW2 Outreach Event Q1 sent info re subcontracting opportunity with prime Q3 Provided information on updating SAM registration 10/12/10 Manufacturing 1 manufacturing Site visit with WA Dept of Commerce and Gov Office staff Tour of facility and review of challenges with L &I State following up with liaison contact at L &I to help resolve issues 2011 Continued follow up Dec 2011 Site visit with potential subcontractor Q2 2012 Sent referral for potential business with aerospace OEM Q3 site visit with electeds to determine needs, sent via partner details on workforce training incentives Q4 assistance with PR Q12013 Met re current business climate and how KEDA may assist Q3 2013 met re future plans and needs continued follow up through the quarter 1/12/10 Professional Services 1 professional PTAC client 2012 Attended Kiewit Outreach event for EHW2 sent email re (2010) services upcoming Walsh construction bid seeking subs Attended Keyport Industry Day, counseled re business succession planning Q12013 attended selling to the Navy' workshop, met with Mary Jo for general session, referred client to regional transportation center for small business cert Q3 Met for follow up on status, reviewed talent needs 8/10/09 09- Defense 6 defense Defense contractor (nonprofit status) seeking grants for new corporate HQ, preferred location Bremerton Provided referrals on grant research, reviewed /provided site options Reviewing sites now still focused on grant opps Client working on closing deal for new corporate HQ, followed up re potential biz opps in new space working with local architect and their preferred partners, contacted re potential partnership opp with recruitment client, introduced to recruitment client as potential assembly partner Site visit to update on client activity now in 8 states potential local expansion, 812013 site visit with Federal staffers Q3 met with client regarding joint presentation, followed up re sequestration 2/29/08 Professional Services 25 professional PTAC client 2012 June sent email re upcoming Walsh construction bid seeking services bids Q3 2013 sent client reminder re SAM expiration with renewal guide I OTHER BRE ACTIVITIES • Added new video to KitsapConnected org website -- Living o Continued promotion via news releases, twitter and FaceBook • Met with Kitsap Business Assistance Organizations to plan collaborative Global Entrepreneurship Week (November 2013 ) • Hosted /coordinated two (2) PTAC Workshops • Prime Contractor Outreach— Working as a Subcontractor Part 3 • Government Contracting 101 • Provided support and /or coordination for PTAC related events o DOD council • Co- hosted Pacific NW Defense Symposium (September 2013) • Continued updates of KEDA website, KEDA Facebook page and KEDA Twitter account Pagel 4 I r OLYMPIC COLLEGE Tel 360- 1600 Chester Avenue Bremerton WA 98337 -1699 475 -7100 - Fax 360 - 475 -7104 - www olympic edu Office of the President October 15, 2013 Honorable Mayor Patty Lent Members of Bremerton City Council 345 6"' Street, Suite 600 Bremerton, WA 98337 Re Annual 2014 Investment in Kitsap Economic Development Alliance Dear Mayor Lent and Members of Bremerton City Council, As Olympic College President, I have had the privilege of serving on the board of the Kitsap Economic Development Alliance for more than a decade I know first -hand of the important work the Alliance performs in advancing economic development opportunities in Bremerton and throughout Kitsap County I am writing to you in support of KEDA I do so because I consider KEDA, and its many investor partners, public and private, to be invaluable strategic partners of Olympic College in meeting the workforce needs of regional businesses and employers KEDA's direct services to local businesses make it a unique and very valued partner in attracting investment to our market and creating fob opportunities for our students - for your citizens The Kitsap Economic Development Alliance, via the Kitsap Aerospace & Defense Alliance initiative, has provided strategic support of Olympic College's Air Washington aerospace skills training programs We believe that this initiative will deliver aerospace manufacturing opportunities to Bremerton and Kitsap County This dynamic partnership yielded solid results this past year as KEDA and Olympic college worked together to meet the workforce needs of the Omohundro Company Omohundro is a thirty year old aerospace composites manufacturing firm that recently relocated from California to Kdsap This company has already hired 9 students directly out of OC's composites program, and is projected to employee over forty skilled production workers from throughout the county by early next year This type of collaboration speaks to the exceptional value of a well - funded, well executed strategic public — private economic development partnership I thank you for your time and consideration, and, for the City of Bremerton's longstanding support of the Kitsap Economic Development Alliance Very Truly Yours, David C Mitchell, Ph D President AGENDA BILL CITY OF BREMERTON CITY COUNCIL ■■ �o������a0a0NMM00E0000N0MM00000000000000E0EE00000EENExa0M00MN000N0NN000ff0ff00NN000ff00ffI SUBJECT Claims & Check Register Study Session Date COUNCIL MEETING Date October 16, 2013 Department Financial Services Presenter Shannon Conn Phone 473 -5323 SUMMARY Approval of the following checks and electronic fund transfers 1) Check #'s 355426 through 355633 and EFT's 13236 through 13272 in the amount of $2,077,470 60 2) Regular Payroll for the pay period ending September 30, 2013 in the amount of $685,505 16 ATTACHMENTS FISCAL IMPACTS (Include Budgeted Amount) STUDY SESSION AGENDA ❑x No Discussion ❑ Full Presentation STUDY SESSION ACTION ❑x Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION Move to approve consent agenda as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/12 AGENDA BILL 10is CITY OF BREMERTON CITY COUNCIL SUBJECT Minutes of Meeting — Study Session Date October 2, 2013 COUNCIL MEETING Date October 16, 2013 Department City Council Presenter Greg Wheeler Council President Phone (360) 473 -5280 SUMMARY Attached is the summary of the City Council Meeting ATTACHMENTS Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount) STUDY SESSION AGENDA R No Presentation ❑ Full Presentation STUDY SESSION ACTION ❑x Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION Move to approve the Consent Agenda as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/25/13 DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, October 2, 2013 The Regular Meeting of the City Council of the City of Bremerton was called to order on Wednesday, October 2, 2013, at 5 00 PM in Council Conference Room 603 of the NORM DICKS GOVERNMENT CENTER, 345 6 th Street, Bremerton, Washington, with Council President Greg Wheeler presiding Council Members present were Nick Wofford, Eric Younger, Carol Arends, Faye Flemister, Adam Brockus, Leslie Daugs, and Jim McDonald Council Member Wendy Priest was absent Also present were City Attorney Roger Lubovich, City Clerk Shannon Conn, Legislative Assistant Lori Smith, and Information Services Manager Kevin Matthew A COUNCIL BRIEFING was held to discuss General Council Business at 5 00 PM in the Council Conference Room, immediately following was the Council Meeting at 5 30 PM The Pledge of Allegiance was led by Council Member Jim McDonald followed by the invocation provided by Pastor Kyle Archibald of Voyage President Wheeler announced that the screen is still being repaired and will not be working for tonight's meeting MAYOR'S REPORT — Mayor Patty Lent • Was pleased to present the Washington Finance Officers Association (WFOA) "Distinguished Budget Presentation Award' for the City's Annual Budget Document for 2013 to Financial Services Director Becky Hasart and Financial Analyst Caroline Tompson • Invited the community to attend the Dispute Resolution Center's "Justice for AX Celebration on Thursday, October 3 from 6 00 to 9 00 PM at the Kitsap Conference Center, • Announced that Goodwill will be providing free back -to -work classes and training courses from October 14 through December 5, • Proclaimed the Month of October, 2013 as "Breast Cancer Awareness Month ", • Announced that the City of Bremerton will participate in a Statewide Earthquake Drill and encourages everyone to "Drop- Cover -Hold' on Thursday, October 17 at exactly 10 17 AM, and • Introduced Stacy Dore of the Boys & Girls Club of South Puget Sound, who invited everyone to the Bremerton Teen Center Dedication Ceremony at the Youth Wellness Campus on Friday, October 18 at 3 30 PM BRIEFINGS Wyn Birkenthal Parks & Recreation Director, introduced Kaleen Cottinaham Washington State Recreation & Conservation Office (RCO) Director, who presented a Bravo Award to the City of Bremerton for its Number 1 ranking in the Washington Wildlife & Recreation Program for the Evergreen Rotary Park Inclusive (Beyond Accessible Play) Playground Project President Wheeler announced that John Powers, KEDA Executive Director postponed a briefing on the 3rd Quarter KEDA Report until the next Council Meeting on October 16, 2013 Cary Bozeman Chair of the Bremerton Parks & Recreation Funding Task Force Committee summarized the work of the Committee PUBLIC RECOGNITION Mike Walton Kitsap Family YMCA Community Marketing Director, highlighted upcoming events and programs at the "Y" in Bremerton City Council Mtg Minutes Wednesday, October 2, 2013 Page 2 of 4 Bishop Larry Robertson Pastor of Emmanuel Apostolic Church, looked forward to celebrating the opening of the Bremerton Boys & Girls Club Teen Center, and believes what they've done for the community is outstanding Debby Hughes of RIES Productions, LLC was pleased to announce their company has located to Bremerton where they will continue to produce quality tripods dust as they always have since 1936 Deena Taylor of Sliced by Light also has located her new business in Bremerton in the old Skookum Building where her company will utilize art laser technology to "create unique and personalized" products April Mills thanked everyone involved with bringing the Beyond Accessible Playground Project to Bremerton Stuart Walton with KCR and the Business Education & Support Training (B E S T ) Program, thanked the City for their vote of confidence in their program, and along with the Asset Building Coalition of Kitsap, invited the community to the 5 th Annual Financial Fair on Saturday, November 2 from 9 30 AM to 1 30 PM at Kitsap Community Resources located at 845 8 th Street CONSENT AGENDA 6A — Claims & Check Register Check Numbers 355253 through 355425, and EFT -13190 through EFT -13235 in the amount of $2,427,754 46, and Retiree Payroll for the pay period ending, September 30, 2013 in the amount of $56,227 27 6B — Minutes of Meeting — September 18, 2013 6C — Minutes of Study Session — September 25, 2013 6D — Resolution No 3203 to approve the Interlocal Agreement to adopt the Association of Washington Cities (AWC) Health Care Program 6E — Resolution No 3204 to establish November 6, 2013 as a Hearing Date to vacate portions of the alley and 4 th Street for the Park Plaza Project 6F — Contract Award to IMCO General Construction, Inc for the Construction of the Warren Avenue Bridge Water Main Replacement Project There were no questions or comments from the public 06 14 15 M /S /C /U (Flemister /Arends) Move to approve the CONSENT AGENDA as presented PUBLIC HEARINGS 7A — 2 OF 2 PUBLIC HEARINGS TO APPROVE LETTER OF AGREEMENT AND LEASE FOR PENDERGAST PARK SOCCER FIELD WITH WEST SOUND FC PREMIER SOCCER CLUB Wyn Birkenthal Parks & Recreation Director, explained that the Pendergast Soccer Fields have been an underused asset since they were constructed in the 1990's West Sound FC has agreed to make artificial turf improvements to the two fields in return for a lease allowing West Sound FC to collect revenue from field scheduling once the turf is installed Additionally, the City would receive $13,537 00 per year in compensation and maintenance fees for the duration of the agreement, and the payment amount will be adjusted for inflation Public use of the fields is guaranteed under Section 2 1 of the lease President Wheeler opened the public hearing City Council Mtg Minutes Wednesday, October 2, 2013 Page 3 of 4 Comments in support from the public were provided by Patricia Graf -Hoke Executive Director of Visit K►tsap Peninsula, John H Larson, Chair of the Bremerton Parks Commission (who submitted a report from the Parks Commission), Steve Vonheeder, President of the Bremerton Soccer Club„ Brandon Kluk, President of FC Crush Soccer Academy, David Connolly, WestSound FC Soccer Coach, and Dennis Michaels, One of the owners of Olympic Soccer & Sports Club, and George Vukic, WestSound FC Director of Coaching Also, a majonty of the members in the audience stood in favor of this action at President Wheeler's inquiry, and Mr Birkenthal displayed the artist's rendering of what the fields will look like With no further public comments, President Wheeler closed the public hearing and noted that Council comments will be provided at the second hearing GENERAL BUSINESS 8A — ORDINANCE NO 5224 TO ESTABLISH A FISCAL POLICY REGARDING THE USE OF UTILITY TAX REVENUE AND PAYMENT IN LIEU OF PROPERTY TAX (PILOT) Becky Hasart Financial Services Director, explained that the City currently assesses both a utility tax (9 5% for water, and $14% for wastewater and stormwater) and a PILOT tax (6% for all three utilities) These taxes are a revenue stream to the General Fund The attached ordinance would establish a fiscal policy that would cap the general fund revenue from this stream to the amount of 2013 actual receipts and redirect any future year increases in this revenue stream to the street fund Comments from the public were provided by 06 28 20 Motion was made by Younger, and seconded by McDonald Comments were provided by Younger, Wofford, Daugs, McDonald, and Wheeler 06 34 45 M /S /C /U (Younger /McDonald) Move to approve Ordinance No 5224 of the City Council of the City of Bremerton, Washington, establishing a fiscal policy regarding the use of utility tax revenue and payment in lieu of property tax (PILOT) revenue assessed against City of Bremerton owned water, wastewater, and stormwater utility revenues COUNCIL MEMBER REPORTS Jim McDonald thought this was the happiest meeting he has attended, and was pleased to see the community so excited about the improvements at Evergreen Rotary Park and the soccer fields at Pendergast Park Leslie Daugs thanked the volunteers Kitsap Habitat of Humanity for providing the supplies and meals for the volunteers of the improvements at Bataan Park, invited the community to the Teen Center Grand Opening, and congratulated the Seahawks for their win over the Houston, Texans Adam Brockus announced the next District 3 Meeting would feature a program to "Meet the Candidates" on Tuesday, October 22 from 6 30 to 8 00 PM at the Senior Center located at East 13 Street & Nipsic Avenue, invited the community to the Manette Neighborhood Coalition Harvest Festival on Saturday, October 12, was pleased a new tenant has been found for the previous location of Kate's Jersey Subs, and said anyone affected by the Government Shutdown were in our hearts and prayers Faye Flemister thanked the Parks Funding Task Force for their work, reminded the public about the upcoming Gateway Clean -up Project was looking for volunteers on Saturday, October 26 at 9 00 AM, and welcomed all of the new businesses joining the Charleston Business District City Council Mtg Minutes Wednesday, October 2, 2013 Page 4 of 4 Carol Arends agreed that a lot of positive things are happening in Charleston, which she was pleased to see Nick Wofford looked forward to the progress planned for SKIA next year Greg Wheeler agreed with Council Member McDonald that there were a lot of fun things brought to the Council tonight, and announced that the City would be holding a Budget Workshop on Monday, October 7 from 4 00 to 7 00 PM in the Council Conference Room EXECUTIVE SESSION — Council convened for a 30- Minute Executive Session from 6 45 to 715 PM to discuss "Potential Litigation" per RCW 42 30 110 (1) (1), with action 07 15 28 (M /S /C /U) Move to authorize the City Attorney to take legal action to foreclose on certain property within ULID 2002 -01, the owners of which are delinquent in paying the required assessment 07 15 50 (M /S /C /U) Move to authorize the City Attorney to take legal action, including filing a lawsuit, related to Code Violations at 649 and 653 Washington Avenue 07 17 06 (M /S /C /U) Move to authorize the City Attorney to enter into an amendment to the NPDES Coalition Interlocal Agreement in substantially the same form as presented to Council and to pay an additional $10,000 for legal services and litigation costs for the appeal With no further business, President Wheeler adjourned the Council Meeting at 718 PM PrepaAd and Submitted by LORI SMITH Legislative Assistant Attest SHANNON CORIN, City Clerk GREG WHEELER, City Council President GW SC Is cg AGENDA BILL 4c; CITY OF BREMERTON CITY COUNCIL SUBJECT Minutes of Budget Workshop — Study Session Date October 7, 2013 COUNCIL MEETING Date October 16, 2013 Department City Council Presenter Greg Wheeler Council President Phone (360) 473 -5280 SUMMARY Attached is the summary of the City Council Meeting ATTACHMENTS Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount) STUDY SESSION AGENDA IN No Presentation ❑ Full Presentation STUDY SESSION ACTION N Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION Move to approve the Consent Agenda as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/25/13 DIGITAL RECORDING CITY COUNCIL BUDGET WORKSHOP MINUTES Monday, October 7, 2013 The Budget Workshop of the City Council of the City of Bremerton was called to order in the First Floor Meeting Chambers of the DICKS GOVERNMENT CENTER located at 345 6 Street, Bremerton, Washington, Monday, October 7, 2013, at 4 00 PM, with Council President Greg Wheeler presiding Council members present were Nick Wofford, Eric Younger, Faye Flemister, Adam Brockus, Leslie Daugs, and Jim McDonald Council Members Wendy Priest and Carol Arends were absent Also present were Finance Director Becky Hasart and Budget Analyst Caroline Tompson Legislative Assistant Lori Smith was present to provide staff support to the Council President Wheeler announced that the 2014 Budget Workshop was for the Council to hear presentations on the proposed budget It was further announced that this Budget Workshop was open to the public, but there would be no opportunities for input or participation, that no action will be taken, and the content of these items is subject to change Becky Hasart Financial Services Director, opened the 2014 Budget Process, bringing forward each respective Director to present an over view of their Fund & Department Budgets 1 Council /Legislative Department 2 Executive Department 3 Legal & Risk Management 4 DCD 5 Municipal Court 6 Auditor 7 Finance Department - Including City Clerk, HR, BKAT, IT, Fire & Police Pension, Non Departmental, Contingency Reserve, Parking, Conference Center, Gold Mountain, Debt Service, REET, and Accumulated Leave & Employment Security 8 Law Enforcement 9 Fire & EMS 10 Parks — Including General Fund and Capital 11 Public Works & Utilities With no further business, President Wheeler adjourned the Budget Workshop at 6 30 PM Prep ed and Submitted by LORI SMITH Legislative Assistant Attest SHANNON CORIN, City Clerk GREG WHEELER, City Council President GW SC Is cg AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT Minutes of Study Session — Study Session Date October 9, 2013 COUNCIL MEETING Date October 16, 2013 Department City Council Presenter Greg Wheeler Council President Phone (360) 473 -5280 SUMMARY Attached is the summary of the City Council Meeting ATTACHMENTS Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount) STUDY SESSION AGENDA ❑x No Presentation ❑ Full Presentation STUDY SESSION ACTION N Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION Move to approve the Consent Agenda as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/25/13 DIGITAL RECORDING CITY COUNCIL STUDY SESSION MINUTES Wednesday, October 9, 2013 A Study Session of the City Council of the City of Bremerton was called to order in the Council Conference Room of the NORM DICKS GOVERNMENT CENTER, 345 6th Street, Bremerton, Washington, Wednesday, October 9, 2013, at 500 PM, with Council President Greg Wheeler presiding Council Members present were Nick Wofford, Eric Younger, Carol Arends, Faye Flemister, Adam Brockus, and Jim McDonald Council Members Leslie Daugs and Wendy Priest were absent Legislative Assistant Lori Smith was present to provide staff support President Wheeler emphasized that the Study Session was open to the public but there would be no opportunities for input or participation, and announced that approved items by Council will be placed on the October 16, 2013 Council Meeting Agenda or as indicated INFORMATION ITEMS 1 2013 United Way Campaign Briefing — Shannon Conn, City Clerk Information only A NO PRESENTATION ITEMS — The following items are budgeted items or have already been reviewed by the appropriate Council Committee 2 Ordinance to amend Chapter 9 24 of the Bremerton Municipal Code (BMC) entitled "Prostitution ", and creating a new section relating to "Loitering" Consent Agenda 3 Contract Award for Construction of the Belfair Valley Road and Lake Flora Road Preservation Project (Bids were opened on October 7) Consent Agenda B FULL PRESENTATION ITEMS 4 Authorizing transfer of $40,000 in Real Estate Excise Tax (BEET) to the General Fund, and approving contract with King County Directors Association (KCDA) for Pendergast Bali Feld Drainage Improvements Consent Agenda The following items were discussed together under one presentation 5 Lease Agreement with Kitsap Transit for the Expansion of the Kitsap Conference Center General Business 6 Interlocal Agreement with the Kitsap Public Facilities District (KPFD) for funding of the Kitsap Conference Center Expansion Project General Business 7 Professional Services Agreement with RiceFergusMdler Architects for Construction Administration Services for the Kitsap Conference Expansion Project General Business 8 Contract Award to ThyssenKrupp Elevators Americas for Elevator Improvements related to the Kitsap Conference Center Expansion Project General Business 9 Contract Award to Jones & Roberts, Inc for Construction of the Kitsap Conference Center Expansion Project General Business C GENERAL COUNCIL BUSINESS • Public Works Committee Briefing (10108113 Meeting) — Adam Brockus, Chair • Other General Council Business was briefly discussed D ADJOURNMENT OF STUDY SESSION City Council Study Session Minutes Wednesday, October 9, 2013 Page 2of2 With no further business, President Wheeler adjourned the Council Study Session at 717 PM Prepared and Submitted by LORI SMITH Legislative Assistant Attest SHANNON CORK City Clerk GREG WHEELER, City Council President GW SC Is cg AGENDA BILL 69 CITY OF BREMERTON CITY COUNCIL ■■ �������������o�00000NaWS0M000Na00000000000WN0Me000ss00SaM0MEEa00E0000EE000s0EE SUBJECT Ordinance No 5225 amending Study Session Date October 9, 2013 Chapter 9 24 of the Bremerton Municipal COUNCIL MEETING Date October 16, 2013 Code Department City Attorney's Office Presenter Roger A Lubovich Phone 473 -2345 SUMMARY The proposed ordinance amends Chapter 9 24 of the Bremerton Municipal code by creating a new section relating to loitering and solicitation and makes other related amendments ATTACHMENTS Ordinance No 5225 FISCAL IMPACTS (Include Budgeted Amount) none STUDY SESSION AGENDA ❑x No Presentation ❑ Full Presentation STUDY SESSION ACTION x❑ Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION Move to pass Ordinance No 5225 making amendments to Chapter 9 24 of the Bremerton Municipal Code COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/12 ORDINANCE NO. .5 1a S AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Chapter 9 24 of the Bremerton Municipal Code entitled "Prostitution" creating a new section relating to loitering and making related amendments WHEREAS, the City Council desires to amend Chapter 9 24 of the Bremerton Municipal Code entitled "Prostitution' relating to loitering and make related amendments, NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS SECTION I Chapter 9 24 of the Bremerton Municipal Code entitled "Prostitution " is hereby amended to read as follows Chapter 9 24 PROSTITUTION 9 24 010 DEFINITIONS As used in this chapter (a) "Known prostitute or promoter of prostitution" means a person who, within one year previous to the date of arrest for violation of this chapter, has, within the knowledge of the arresting officer, been convicted in any court of an offense involving prostitution (b) "Prostitution" means to engage in conduct proscribed in Section 9 24 020 (c) "Public place" is an area generally visible to public view, including, but not limited to, streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles, buildings open to the public including those which serve food and/or drink, doorways and entrances to buildings not open to the general public, but which are open to a certain class or group of the general public through the use of club membership or affiliations with a club or organization, including, but not limited to, the United States Armed Forces 9 24 020 PROSTITUTION PROHIBITED (a) It is unlawful for any person to engage in, or agree to engage in, or offer to engage in, sexual conduct with another person in return for any form of compensation (b) For purposes of this chapter "sexual conduct" means sexual intercourse as defined in RCW 9A 44 010(1) or sexual contact as defined in RCW 9A 44 010(2) 9 24 040 PATRONIZING A PROSTITUTE PROHIBITED. It is unlawful for any person to patronize a prostitute A person is guilty of patronizing a prostitute if (a) Pursuant to a prior understanding or agreement he or she pays any form of compensation to another person in exchange for such person or for a third person, to engage in sexual conduct with him or her, or 1 Chapter 9 24 Loitering & Sohmation (b) He or she pays or agrees to pay any form of compensation to another person pursuant to an understanding or agreement that, in return therefor, such person will engage in sexual conduct with him or her, or (c) He or she solicits or requests another person to engage in sexual conduct with him or her for any form of compensation 9.24.050 PERMITTING PROSTITUTION PROHIBITED It is unlawful for any person to permit prostitution in or on premises which are in his or her possession and /or control A person is guilty of permitting prostitution if, having possession or control of premises which he or she knows, or should know, are being used for prostitution purposes, he or she fails to make a reasonable effort to halt or abate such use 924.060 SOLICITING OR LOITERING FOR PROSTITUTION PROHIBITE , be eensider-ed in detemining if suah prohibited eenduet is intended are- (a) if the aeter- repeatedly beekens to, steps, or- aftempts to step, or- engages passes (b) Repeatedly steps or- attempts to stop meter- vehieles, of (e) is a known prostitute of pr-emater of prostit (a) Solicitation It is unlawful for any person to intentionally solicit induce entice or procure another to commit an act of prostitution (b) Loitering It shall be unlawful for any person to loiter in or near any public place in any manner and under circumstances manifesting the purpose of committing or inducing, enticing, soliciting or procuring another to permit an act of prostitution (c) Among the circumstances which may be considered in determining whether solicitation or loitering is intended are if the actor (1) Repeatedly beckons to, stops, or attempts to stop or engages passes -by in conversation, (2) Repeatedly stops or attempts to stop motor vehicles, (3) Is a known prostitute or promoter of prostitution, and/or (4) Attempts to detect or identify a police officer, peace officer, or other law enforcement officer, during an investigation into prohibited conduct in this Chapter, by any of the following means (1) exposing or offering to o expose one's breast or breasts, buttocks sexual organs or private body parts, (ii) requesting asking or encouraging another to touch or fondle one's breast or breasts, buttocks, sexual organs or private body parts, (iii) touching g_ r requesting to touch the breast, breasts, buttocks sexual organs or private body parts of another, (iv) requesting asking or encouraging another to expose or show the other's breasts, buttocks, sexual organs or private body parts, (v) inquiring whether a potential patron, procurer or prostitute is a police officer, or (vi) searching for articles that would identify a police officer 2 Chapter 9 24 Loitering & Solicitation 924.070 DEFENSE It shall not be a defense to any +n- violation of this chapter that the se*-ef4he- or prospective parties to an act of prostitution or contemplated act of prostitution }s - are of the same sex Further, it shall not be a defense to any act inviolation of this chapter that the person who received, agreed to receive or solicited a fee was male, and the person who paid or agreed to pay such fee was female 9 24 47-2-080 STAY OUT OF AREAS OF PROSTITUTION ORDERS (a) Stay Out of Areas of Prostitution orders, hereinafter designated as SOAP orders, may be issued by the Bremerton Municipal Court to anyone charged with any offense defined in this chapter as a condition of pre -trial release (1) Any individual arrested or charged with any offense defined in this chapter, shall appear for a hearing before the Bremerton Municipal Court to show cause why a SOAP order should not be issued as a condition of pre -trial release (2) At the time the individual is arrested or charged with any offense under this chapter, the individual shall be issued a RELEASE FROM CUSTODY AFTER ARREST form, to be signed by the individual, acknowledging the following (i) The date and time of hearing, (u) The designated areas of the City the individual will be ordered to stay out of by the SOAP order, (iii) The penalties for violating a SOAP order, (iv) That if the individual fails to appear at the hearing or fails to show good cause why the order shouldn't be entered, the SOAP order will be entered (3) Any individual charged with an offense under this chapter shall have the right to a single one -week continuance of said hearing for good -cause shown (4) If the individual fails to show cause why the SOAP order shouldn't be entered, the SOAP order shall be entered pending trial (5) If the individual fails to appear at said hearing, the SOAP order shall be entered pending trial (b) SOAP orders may be issued by the Bremerton Municipal Court to anyone convicted of any offense defined in this chapter (c) SOAP orders may order the person named in the order to stay out of the following described areas of the City designated to be anti - prostitution emphasis areas in order to assure elimination of all prostitution and prostitution- related activity within these areas (1) The entire area extending from the 100 block to the 900 block of North Callow Avenue, and one block east and west of this area of North Callow Avenue, and (2) The entire area extending from the 100 block to the 2500 block of 6th Street, and one block north and south of this area of 6th Street, and (3) The entire area extending from the 600 block to the 1100 block of Park Avenue, and one block east and west of this area of Park Avenue including Evergreen Park, and (4) The entire area extending from the 300 block to the 1100 block of Warren Avenue, and one block east and west of this area of Warren Avenue (5) Any other area found by the Judge of the Municipal Court to warrant designation as an anti - prostitution emphasis area when specifically set forth and identified in a court order naming a particular defendant 3 Chapter 9.24 Loitering & Sohmation 9 24 074.090 VIOLATION OF CONDITION OF RELEASE OR PROBATION The presence of any person within an anti - prostitution emphasis area in violation of court- imposed conditions of release or conditions of suspension diversion or deferral of any sentence shall constitute a separate crime hereby designated a gross misdemeanor and any such person may be apprehended and arrested without the necessity for any warrant or additional court order Upon conviction, any person so violating the conditions of release or conditions of suspension or deferral shall be punished by imprisonment in fail for a maximum term fixed by the court of not more than one (1) year, or by a fine in an amount fixed by the court of not more than Five Thousand Dollars ($5,000 00), or by both such imprisonment and fine 9 24 08 100 VIOLATIONS OF SECTIONS n 24 020 THROUGH n 24 PTV — Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor as defined in BMC 1 12 020(2) SECTION 2 SeverabihU If anyone or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect SECTION 3 f fective Date This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law PASSED by the City Council the day of 1 2013 GREG WHEELER, Council President Approved this day of 9 2013 PATTY LENT, Mayor ATTEST APPROVED AS TO FORM SHANNON CORIN, City Clerk ROGER A LUBOVICH, City Attorney PUBLISHED the day of , 2013 EFFECTIVE the day of , 2013 ORDINANCE NO R \Legal \Legal \Ordmances\Police\BMC 9 24 Loitenng & Solicitation -Final docx 4 Chapter 9 24 Loitering & Solicitation AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT Contract Award to Lakeside Study Session Date October 9, 2013 Industries for Construction of the Belfair COUNCIL MEETING Date October 16, 2013 Valley Road and Lake Flora Road Department PW & U Preservation Project Presenter Chal Martin Phone 360 473 5758 SUMMARY The City received Puget Sound Regional Council (PSRC) funding for pavement preservation on Belfair Valley and Lake Flora Roads The project will be an overlay of both roadways using a fiber reinforcement in the asphalt with minimal roadway repairs The City advertised the project on September 16 and received 5 bids on October 7th The apparent low, responsive, responsible bidder was Lakeside Industries for $382,918 00 including sales tax ATTACHMENTS 1) Contract, 2) Bid Tabulation FISCAL IMPACTS (Include Budgeted Amount) The project is included in the Street Fund, the 2013 budget is $450,000 The project is funded by a $389,250 grant from the PSRC, with a 13 5% City match of $60,750 from the Street fund No Transportation Benefit District (TBD) funds are used in this project STUDY SESSION AGENDA ❑x No Presentation ❑ Full Presentation STUDY SESSION ACTION ❑x Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION Move to approve award of the contract for the Belfair Valley Road and Lake Flora Road Preservation Project and authorize the Mayor to finalize and execute the agreement with Lakeside Industries, in the amount of $382,918 00 with substantially the same terms and conditions as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/12 Local Agency Contract THIS AGREEMENT, made and entered into this day of between the , and the under and by virtue of Title 47 RCW, as amended and hereinafter called the Contractor WITNESSETH That in consideration of the terms and conditions contained herein and attached and made a part of this agreement, the parties hereto covenant and agree as follows I The Contractor shall do all work and furnish all tools, materials, and equipment for in accordance with and as described in the attached plans and specifications, and the standard specifications of the which are by this reference incorporated herein and made part hereof and, shall perform any changes in the work in accord with the Contract Documents The Contractor shall provide and bear the expense of all equipment, work and labor, of any sort whatsoever that may be required for the transfer of materials and for constructing and completing the work provided for in these Contract Documents except those items mentioned therein to be furnished by II hereby promises and agrees with the Contractor to employ, and does employ the Contractor to provide the materials and to do and cause to be done the above described work and to complete and finish the same in accord with the attached plans and specifications and the terms and conditions herein contained and hereby contracts to pay for the same according to the attached specifications and the schedule of unit or itemized prices at the time and in the manner and upon the conditions provided for in this contract SR DOT Form 272 OOBA EF 072011 III The Contractor for lumself/herself, and for his/her heirs, executors, administrators, successors, and assigns, does hereby agree to full performance of all convenants required of the Contractor in the contract IV It is further provided that no liability shall attach to the State by reason of entering into this contract, except as provided herein IN WITNESS WHEREOF, the Contractor has executed this instrument, on the day and year fast below written and has caused this instrument to be executed by and in the name of the day and year first above written Executed by the Contractor , (Contractor) Local Agency Title By Date SR DOT Form 272 006A EF 0712011 Belfair Valley and Lake Flora Roads Preservation Project BID TABULATION 1 2 3 ENGINEER S ESTIMATE MiILES RESOURCES LAKESIDE INDUSTRIES GRANITE CONSTRUCTION TUCCI & SONS LAKERIDGE PAVING CO LLC SCHEDULE A ROADWAY ITEM EST NO SPEC DESCRIPTION OF ITEM QUANTITY UNIT UNIT PRICE AMOUNT UNIT PRICE AMOUNT UNIT PRICE AMOUNT UNIT PRICE AMOUNT UNIT PRICE AMOUNT UNIT PRICE AMOUNT 1 1-04 MINOR CHANGE 1 EST $5 000 00 $50000( $15 000 00 $1500000 $15 000 00 $1500000 $15 000 00 _$150000 $15 000 00 $15 000 0 $15 000 00 $150000 2 1 07 SPCC PLAN 1 LS $1 000 00 $10000( $55000 $5500 $25000 $2500 $1 000 00 $10000 $10000 $100001 $1 000 00 $10000 3 1 -09 MOBILIZATION 1 LS $25 000 00 $250000( $13 000 00 $130000( $16 000 00 $16000 $30 000 00 $300000 $17 530 00 $17530001 $3000000 $30000 4 1 10 PROJECT TEMPORARY TRAFFIC CONTROL 1 LS $10 000 00 $100000f $2650000 $265000( $15 000 00 $150000 $19 000 00 $19000 $34 970 00 $34 970 0 $25 000 DO $250000 5 201 ROADSIDE CLEANUP 1 FA $100 $10( $100 $10( $100 $100 $100 $100 $100 $1001 $100 $10( 6 2 11 TRIMMING AND CLEANUP 1 LS $1000000, $100000( $1 000 00 $1 000 0 $6 957 00 $6957 $1 000 00 $1000 0 $3 200 00 $3200001 $3 450 00 $34500 7 4-04 CRUSHED SURFACING TOP COURSE 470 TON $3000 $14100001 $3300 $155100( $3900 $18 330 0 $4500 $21 150 $3100 $14 570 0 $5700 $267900 8 SP 5.04 FIBER REINFORCED HMA CL 1/2 IN PG 6422 3 300 TON $11500 $37950004 $8800 1 $2904000( $84001 $277 200 0 $8900 $293700001 $9000 $297 000 0 $9475 $31267 0 9 SP 5-04 PAVEMENT REPAIR 100 SY $6000 $6000001 $6900 $6900 0 $14200 $14 200 0 $12000 $1200004 $7700 $7 700 0 $12500 $12 500 0 10 5-04 PLANING BITUMINOUS PAVEMENT 560 SY $1000 $5 600 0 $22 00 $12 320 0 $12 00 $6 720 0 $12 00 $6 720 0 $16 50 $9 240 $21 00 $11 760 0 11 8-22 PAINT LINE 78000 LF $017 $13260001 $009 $7020 00 $0 17 $13 260 0 $0 16 $12 480 0 $0 20 $15 600 0 $0 17 $13 260 00 TOTAL CONSTRUCTION COST $469 461 0 $388 201 0 $382 918 0 $412 051 0 $414 911 0 $451 436 0 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT Pendergast Ball Field Drainage Study Session Date Oct 9 2013 Improvements COUNCIL MEETING Date Oct 16 2013 Department Parks and Recreation Presenter Wyn Birkenthal Phone 473 -5752 SUMMARY Improvement to ball field drainage at Pendergast Park to support league and tournament softball play which is the Park Department's largest single revenue generating program Ponding and soft outfield turf at field number 2 has resulted in cancellation of tournaments and city league games Additionally, poor drainage causes staff to spend an inordinate amount of hours attempting to bring the field to a safe, playable condition following rainy weather The $40,000 transfer of real estate excise tax (REET) will fund installation of sub - surface drains including perforated pipe placed in sand filled trenches spaced every 15 feet The work will be performed by Greenshield Systems LLC under a contract with the King County Directors Association (KCDA) KCDA is a non - profit purchasing co -op used by municipalities and school districts to obtain volume pricing on goods and services Performing these improvements in the Fall season will allow the field to recover in time for the Spring softball season ATTACHMENTS "A" Contract KCDA for Field Improvements, "B" Greenshield Systems LLC Quote & KCDA Contract Pricing, and "C" KCDA Purchasing Cooperative Agreement with Greenshield Systems LLC FISCAL IMPACTS (Include Budgeted Amount) Upon transfer of $40,000 from REET to the General Fund, adequate funding will be available for the proposed improvements There are adequate available funds in REET for this transfer and it will be included in the year -end budget amendment STUDY SESSION AGENDA ❑ No Presentation ❑x Full Presentation STUDY SESSION ACTION ❑x Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION I move to authorize the transfer of $40,000 of real estate excise tax (REET) to the General Fund and authorize the Director of Park and Recreation to purchase services for improvement to ball field drainage at Pendergast Park from Greensfield Systems LLC through KCDA purchasing cooperative COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/25/13 gygo MO Wil ATTACHMENT B Sports Ted Drainage Specialists Bremerton Parks & Recreation update juiy 26 -2M updated September 16, 2013 680 Lebo Boulevard, Bremerton WA 98310 360473 -5309 fax 360- 473 -5882 Attention Tom Cressman c360- 434-5074 tom cressman& bremerton wa us re Pendergast Regional Park, 1199 Union Ave W Bremerton WA 98312, field drainage 10A o Pfti=as Greenshield Systems® proposes to design and install a sports turf drainage system Won center over field 3 of the natural grass hardball areas A complete project includes site evaluation, design, mobilization, layout, materials, drainage system installation and hydro - seeding over the trenches The proposed sports turf drainage installation to be 2' perforated pipe in a sand trench together 4' ADS dual wall N- 12 non - perforated collection manifold The collection manifold will connect to your existing storm system or swale Note Greenshleld Systems® will generate up to 145 cubic yards of trench spoils which will be stockpiled at a location on site at owner's direction Note Start date would be t October 14 and will be subject to weather i e filed saturation and stability SQUARE FIELD NAME FOOTAGE KCDA urchasm Field 3 & $0 SLYM ft for IN on center installation 56,000 $33,60000 installation total $33,60000 Bond 1,09500 1801 _8 8 6 % tax 238377 Pro ect total eos $37,07877 do foloybg a to doe pre►rilous quoWW **Owner will supply a `clean' area for Greenshield Systems to stockpile sand during construction `Owner will supply a localized area for Greenshield Systems to stockpile spoils dunng construction *Owner is responsible for any and all permits if required **Owner is responsible for locating all buried services in the construction area "A `locator wire' will be installed with all 4 inch pipe "*This proposal/bid is valid for 160 days from the above date 11745 State Route 20, Mount Vernon WA 9$273 -4710 wmgmsMsystems.on 304866M WA GREEN9SL"Z OR 175380 Far KCDA Contract Information - Sports Field Drainage Systems - Greenshield Systems LLC Page 1 of 2 KCDA Contract Information Awarded vendor Greenshield Systems LLC g�g� KCDA Bid 12 -415, Sports Field Drainage Systems Contract Expiration Date October 31, 2013 Contract Award Award L Extension Letter Approved Drainage of natural grass sports fields /playfields Products /Services Bid Tabulation /Evaluation For additional information regarding the products awarded Available Upon Request to Greenshield Systems LLC, please click logo below Primary Vendor Contact. Cynthia Dolman and Jeff Horan Co- owners Cynthia@greenshieldsystems ca Phone 360 -466 -0406 Fax 360- 466 -0333 Order KCDA Purchasing Placement /Processing Shawne Anderson, Purchasing Agent Phone 425- 251 -8115, ext 141 Fax 360- 466 -5402 Pricing Price List Bid information Terms, Conditions and Specifications Ad dendum 1, Posted on 9/12/ Add enda 2, Posted on 9/27/11 Website Posting Certificate Washington Bid Advertisement Orego Bid Advertisement KCDA Authorizing Revised Code of Washington 28A 320 080, Cooperative Statutes Purchasing Revised Code of Washington 39 34, Interlocal Government Agreements Oregon Revised Statute 279A 210, Joint Cooperative http / /www kc&org/KCDA Awarded_Contract 12- 415_Greenstueld Systems htm 9/17/2013 KCDA Contract Information - Sports Field Drainage Systems - Greenshield Systems LLC Page 2 of 2 Procurements Alaska Statute 36 30 700, Cooperative Purcashing Authorized Idaho Code 67 -2328, Joint Exercise of Powers For other state statutes goto www kcda org click on the Membership tab and click on Statutory Authorizations http / /www keda org/KCDA—Awarded—Contract htm 9/17/2013 ATTACHMENT C �lB8CM&AVO 9RQP M TIME 18639- BOTH Ave S • P 0 Sm 5550 + W WA 98064$55 • Phone 425.251$115 + Fax 25395 -5402 a wwAc&ItL" a4`rr_w,rn RENEWAUEXTENSION OF AGREEMENT Contract 12-415 RENEWAUEXTENSiON AGREEMENT Dade by and between KCDA Purchasing Cooperative BOARD OF PO Sox 5550 DIRECTO Kent, WA 98064 -5550 425 251 8115 VACANT Dhdm And DOUG LAW wan&,pton Greenshield Systems LLC Sdrool OkbtCl4r0 Said Agreement being numbered KCDA 12-416 Sports Field Drainage Systems BRIAN The exksting Agreement initially commenced Ockdw2l, 2011 through October 18, 2012 The ksswudh ors�rra4lr Term of Contract and Renewal/Extension In the KCDA Bid provides the Agreement may be extended in three 12 month increments by mutual wniten agreement (October 2013, October 2014, and October 2015) KCDA Purchasing Cooperative desires to enter into the first yew MAW renewal beginning October 18, 2012 through October 31, 2013 Upon the signature of an RANEY authorized officer of the Agency and of the above named company or corporation, the Fed& agreement is hereby extended SdW Bdad210 This extension shall be subject to the Terms and Conditions as contained m the original KCDA Do Bid Number 12-415 N04OLSON Sd�D 412 KCDA Purchasing Coops tive Authorized Sin /9 cV/,; Pnn Greenshield Systems LLC • .� Authorized Signature d� dated Printed Cynthia Dolman K" County Drectors' Association A Public Procurement Agency .$ ♦V�L� , te:Ym PURCHASING COOPERATIVE 18635- 84TH Ave 8 + P 0 Box 5550 + Kea, WA 98064.6550 + Phan 425 -251- 8115 • Fax 253-395,5402 + WaW Acde org October 21, 2011 Greemshield Systems LLC 11745 State Route 20 Mount Vernon, WA 98273 KCDA Bid 12 -415 Sports Field Drainage Systems was awarded October 21, 2011 b the KCDA Board of Directors per the terms and conditions of the hid and one (1) Addendum. The initial BOARD OF contract is one year begmnmg October 21, 2011 and ending October 19, 2012 There is a DIRECTORS possibility of three (3) one (1) year renewable options at the mutual discretion of KCDA, KCDA p „iron n customers and the vendor BILL Greenslueld had four exceptions. it was established between Greenshmid and KCDA. Tahome Schad i)&* 4M . 5 3 0, page 30 Greenshield Systems LLC bid is based on 10 foot center drainage installation DOUG o Tab 1, #10, pages 57 -58 Purchasing of sports field dramage systems does not apply, the EMING Lake Washhftn 180 da y rule noes SdwWD,sW414 ® KCDA wl not post customer reference forms m KCDA does have permission to post signatures on line DW-lon 3 BRIAN DEAGLE An award page will be posted on our websde no later than October 28, 2011 Issac�ah Schad DZW 411 Thank you for responding to our bid and we look forward to working with Greenslneld, ftwon 4 E D AARNEY Please complete the information below confirming your acceptance of the award and return via Federar Way PDF to cwma kcda. no later than Tuesday, October 25, 2011 This wilt be posted on our Schaal MW 210 webstbe Di ving 5 SUE If you have questions, please feel free to contact me BUSKE A kdhsham Schadorst 417 Greenshield. Systems LLC Company 11745 State Route 20, Mount Vamn WA 98273 Address cynithraQgreenshieldsystems coin 360 -466 -0406 EnvWhone # EEPober Name (prided) Name (Signature) & 24, ZOI k (D } Sincerely, i Charlene Turner — KCDA Purchasing Manager 425- 251 -8115 x143 r King County Directors' Association A School Purchasing Cooperative Invitation for Bid King County Directors' Assotiation August 29, 2011 TAB 9: SClSiEDULE A- Price List f (UNDER COVER OF THIS TAB MUST BE TIH CONTRACTOR'S SCHEDULE A- Price Lisa THIS MUST BE SUBMITTED WITH II B RESPONSE OR THE RESPONSE WILL BE DISQUALHUD) Fable 1: (Description * Pnce Washington price "per square foot" for installation of a 15,000 TO 50,000 "turn. -key Sports Field Dramage System SQUARE FEET $0 Washington price "per square foot" for installation of a 50,001 TO 100,000 "fain -key" Sports Field Drainage System SQUARE FEET $077 Washington price "per square foot" for installation of a 100,001 TO 200,0 00 "turn -key" Sports Field Drainage System SQUARE FEET $0715 Washington price "per square foot" for installation of a 200,001 AND OVER "turn -key Sports Field Drainage System SQUARE FEET $06325 Oregon price "per square foot" for installation of 15,000 TO 50,000 installation of a `turn -key Sports Field Dmmage System SQUARE FEET $088 Oregon pnce "per square foot" for installation of 50,001 TO 100,000 mstallation of a `turn key" Sports Field Drainage System SQUARE FEET $077 Oregon price "per square foot" for installation of 100,001 TO 200,000 installation of a "turn -key" Sports Field Drainage System SQUARE FEET $0715 Oregon price "per square foot" for installation of 200,001 AND OVER installation of a "turn-key" Sports Field Drainage System SQUARE FEET $06325 Price per square foot, based on size applies to all projects m all states (except Alaska & Hawaii) outside of Washington. Price differential is on all areas outside of Washington Pine Differential for Installation Outside Washington - This amount will be added to the Oregon and alt states (except Alaska & Hawau) outside of Washington "per square foot" price indicate the point from which ail mdeage will be measured Mileage will round-trip {charged to and return. from Meet site Base location from which mileage will be measured Seattle, 1-5 male marker 165 _ Differentml per mde outside Washington amount added to the"per square foot" Price per mile $$ 00 NOTE. In calculating the price for each project subject tp the per mile Price Differential, the Contractor is using mileage which results in the most favorable total price for the purchaser f Sports Field Drainage Systems - Page 79 TAB- IFS 12-415 lnvttatton for Bid ling County Directors' Asmcwtion August 29 2011 Additional Cost Factor ~m Table 2. Descriptions Additional Optional Services per square Factor foot Fertilize Products must not in violation of any state or per sq ft $ 02 federal statutes. Fertilize using 20 -14-14 at an application rate of 15 pounds of N (nitrogen) 40 immediate nitrogen and 60% wended feeding, per 1,000 square feet Slit overseed with mechanical PTO driven slice seeder with a Northwest Sports Field Turf seed variety (as selected by customer) applied at 5 #11,000 square foot per sq ft $ OZ Sod installation over trenches Sod over trenches including import and placement USDA sand grown no net sod, priced per square foot of improved drainage area per sq ft $ 14 - based on the square footage of the construction area Top -dress Top dress with'A" of sports field top dressing sand (see certified sand sieve), drag and stockpile area per sq ft $ 04 clean up - material and application Aeration core harvest. Harvest of aeration cores with core harvesting implement and export from site, priced ( per square foot per sq ft $ 015 Hollow tine aeration. 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P o y �jl ���f > ,� e o r� z , p 4 , wd�� , 4 j a , < � v a � '� _ .ter i B�' v ✓ i�t r p f — ✓ � �ylY � c "'f�� 9 � �"� � 'i� i� `�+ R �u._ (7 ^- z �� � If"�i r1 ! , c 0 � �� o o � " �. �' �.a �f v9?° q �c r .rM1r �" µ' i f' W ^ f ' �I t � � v � ' I � 7 �' �' � ' � 5 1� rl \ , }, - ` '�, / V i�f ✓ a • � dri /�tl�'��t. '` �� � `�" ` � n � r o �i � I `r� < ,� ✓ 5�� \ o �9 ' } m ^�. f""r � .. F' t i9 ty�" v ./ � :l i /' � �'� � ar �, ib t � �' T� t t� �° O ��C✓ /`% � � � � a .r Q y .l� l �r,¢y y b�"�'1r�4 .q '4 \ { r t \.Q. �h�� SY a �. f` � =�� •�✓ % /� n f�" / J �t r � 11. 2 "" A/ � ` f /�� r ✓/ !/a J Y f D < P ^ �, 7 0 o !�� °' r , � ,. `6 Jan °; % �' 6 �� �� f O ( ° , 5° p " 4\4 I) /i()f i1� Q �._fJ��A ryr Y � fi ?W aC�'�i .j./� I� rp r / ! I //77 /� �� ! ' r Q r �_ G 4 �) `N \ l\� r / n r �! 9 .s °} ✓� ,y, a ,�� e s q, IY r r r y tud / 1 ° O' \ � ..✓ a _ / � � ��� � � U 0 AGENDA BILL CITY OF BREMERTON 7A CITY COUNCIL ■■ ���������������������������������0000000000MMM0000MNN080a000Ea000M00aE000000M00E0e0001 SUBJECT Overview, Kitsap Conference Study Session Date N/A Center Expansion Project Implementation, COUNCIL MEETING Date October 16, 2013 Agreements, Lease and Contracts Department PW &U Presenter Martin Phone X 5758 SUMMARY The agenda bills following this introductory presentation provide the necessary instruments to implement the Kitsap Conference Center Expansion project Those necessary instruments are 1 Interlocal Agreement with the Kitsap Public Facilities District 2 Lease Agreement with Kitsap Transit 3 Contract Award to Jones & Roberts, Inc for the Conference Center construction Contract 4 Award to ThyssenKrupp Elevator Americas for elevator improvements 5 Professional Services Agreement with Rice FergusMiller Architects for construction administration ATTACHMENTS 1 Project Milestones 2 Project Budget and Financing Overview 3 Lease Impacts for the City of Bremerton 4 Sales Tax Summary FISCAL IMPACTS (Include Budgeted Amount) This $1 1 million economic development project will be paid for with $600,000 of grant/outside funding and $500,000 of City funds It will generate revenue adequate to defray the expenses associated with the City's investment, and will provide a moderate direct return on investment STUDY SESSION AGENDA ❑ No Presentation ❑ Full Presentation STUDY SESSION ACTION ❑ Consent Agenda 0 General Business ❑ Public Hearing RECOMMENDED MOTION N/A Agenda bills following will provide information specific to each element of the project implementing, agreements, lease and contracts COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/12 r r 1 r Cam/ 64 _l Conference Center (And Elevator) Design / Bid / Construction Milestones Updated October 9, 2013 (strike- through indicates milestones have been completed) Submit agenda item for- t13 sE ,, , � 12 nn r rovn Finalize statefnef4 of wer-lareentr-arat 11 00 Fd Wednesday , �r vvsrn r th pr-efe ♦— i u4h eriz at t e n t o p Til ,,, u rsd aysu l r`T - P •Ki fneeting,, -offs f R iee >a er-gusN4tlle 1 n nn T1 UFs &y u ! y I 1 h Release Elevator- RFP Wednesday, August st • Elevater - PvFP Site Visit Wednesday August - ?8 h and Thursday, A ugust yo Bid Confer-enee Gei4er- Pfejeet Riday, September- 6 (or- early the following weelo • Op en Elev RFP Prop Ff ay S eptember– � Op en �TrT— �T c Kitsap Tmasit Board Meeting Tuesday, 1# • Submit PFD Agfeement for- Getmeil Approval Wednesday, SeptelnbeF 19, 12 00 p o Note this agreement still needs to be finaled – draft only as of 10/9/13 • Tentative Seleration, Elevator Gentmeter Friday, September 20 (N /A since only 1 bid) • Open BidsrCon€er-enee Cent M y, ceptembef-a (14 bids received) •Submit does for- City -Ce ll -appre ' Wednesday, n 2 +d , 12 00 p m o Council Approves PFD Agreement (this is delayed for approval October 16` • Submit infefmatten -paekage fef! Kitsap - T ransit Board Tuesday, oeteber- • Kitsap Transit Board Meeting – Tuesday, October 15 o Authorize City of Bremerton / Kitsap Transit Lease Agreement • Bremerton City Council meeting — Wednesday, October 16 • Authorize City of Bremerton / Kitsap Transit Lease Agreement • Authorize Interlocal Agreement Bremerton / Public Facilities District • Authorize Conference Center Bid Award / Construction Contract • Authorize Conference Center Construction Contract • Authorize Conference Center Construction Management Contract • Authorize Elevator Retrofit Construction Contract • Conference Center Contractor notice to proceed – Thursday, October 17 • Elevator Retrofit Contractor notice to proceed – Thursday, October 17 • Kitsap Public Facilities District Board meeting consider additional funding request • Construction complete – March 31, 2014 Project budget maximum including both hard and soft costs $1100 000 Martin 10/9/13 Public Works & Utilities 1 100 Oyster Bay Ave N Bremerton WA 98312 * Phone (360) 473 -5315 * Fax (360) 473 -5018 Kitsap Conference Center Protect Financing Update's October 2, 2013 Original Project Budget, with revisions annotated Conference Center 3' Floor Expansion $900,000 • Design and Bid Package - 79,000 • Construction management - 30,000 • Furniture and Equipment - 72,549 0 (convert to ongoing operational expense) • Sales Tax - 52,469 64,242 • Window treatments - 30,000 • Testing services - 5,000 • Commissioning services - 8,000 • Permits - 44,-999 15,642 Amount available for construction 668,116 Low bid received = $746,900 (with all alternates) Contingency reserve at 3% = ( 03)(746,900) = $22,407 Additional funding needed $746,900 + $22,407 — $668,116 = $101,191 Additional funding proposals /commitments underway 1) Kitsap Transit $200,000 for elevators (and /or additional work related to landlord responsibility) - $103,445 for elevator retrofit /valve replacement -$ 15,000 to improve elevator interiors 81 for partial reimbursement of work attributed to facility owner obligation 0 2) Kitsap Public Facilities District a request for an administrative increase of 5% of the $400,000 PFD award will be considered by the PFD Board at its meeting on Monday, October 28, 2013 We will work with Kitsap Transit and the Kitsap Public Facilities District to achieve this additional funding If accomplished, then additional outside funding would be $81,555 + $20,000 = $101,555, exceeding the minimum funding requirement by $364 This will provide funding for the base bid and all alternates, including 3% for contingencies Projected Sales tax Sales tax Sales tax Sales tax Sales Tat Total sales Year Increase City Transit PFD County State tax increase $ per CHI 0850% 0800% 0033% 0450% 6467% 8600% 2014 2015 516 360 00 4 389 06 4 130 88 17040 2 323 62 33,393 00 44 406 96 2016 531850 80 4 520 73 4 254 81 17551 2 393 33 34 394 79 4573917 2017 547 806 32 4 656 35 4 382 45 18078 2 465 13 35 426 63 4711134 2018 564 240 51 4 796 04 4 513 92 18620 2 539 08 36 489 43 48 524 68 2019 581 167 73 4 939 93 4,64934 19179 2 615 25 37 584 12 49 980 42 2020 598 602 76 S08812 4 788 82 19754 2 693 71 3871164 5147984 2021 616 560 84 5 240 77 4 932 49 20347 2 774 52 39 872 99 53 024 23 2022 635 057 67 5 397 99 5 080 46 20957 2 857 76 4106918 54,614 96 2023 654109 40 5 559 93 5 232 88 21586 2 943 49 4230125 56 253 41 2024 673 732 68 5 726 73 5 389 86 22233 303180 43,570 29 5794101 509,076 03 2025 693 944 66 5 898 53 555156 229 00 3 122 75 44,877 40 59 679 24 2026 714 763 00 6 075 49 5 718 10 23587 3 216 43 46 223 72 6146962 2027 736 205 89 6 257 75 5 889 65 24295 3 312 93 47,610 44 63 313 71 2028 758 292 07 6 445 48 6 066 34 25024 3 412 31 49 038 75 65 213 12 2029 781040 83 663885 6 248 33 25774 3 514 68 50 509 91 6716951 2030 804 472 06 6 838 01 6 435 78 26548 362012 52 025 21 69 184 60 2031 828 606 22 7 043 15 6 628 85 273 44 3 728 73 53 585 96 71 260 13 2032 853,464 40 7,25445 6,82772 28164 3,84059 55,193 54 73 397 94 2033 879 068 34 7 472 08 7 032 55 29009 3 955 81 56 849 35 75 599 88 12 969 346 19 110 239 44 103 754 77 4 279 88 58 362 06 838 727 62 — 1115 363 77 Projected increase figures provided by Columbia Hospitality increases 3% per year Figures do not include potential increases to local economy for outside sales Figures do not include potential increases to Hotel /Motel taxes Lease with Kitsap Transit for the Kitsap Conference Center Expansion Project Impacts for the City of Bremerton Projected Sales tax Transit Transit Year Income City Lease CAMS taxes financing Total to Aggregate $ per CHI (general fund) subtotal $ 1500 $ 2 75 090% subtotal repayment City Cash Flow 0 0 - - - 000 1 2014 142,550 00 4,38906 146,939 06 - 18,562 50 4,64724 123,729 32 103,750 00 19,979 32 19,979 32 2 2015 146,646 50 4,52073 151,167 23 - 18,562 50 4,78666 127,818 07 103,000 00 24,818 07 44,797 39 3 2016 150,865 90 4,65635 155,522 25 - 18,562 50 4,93026 132,029 49 102,250 00 29,779 49 74,576 89 4 2017 155,21187 4,79604 160,007 92 - 18,562 50 5,07816 136,367 25 101,500 00 34,867 25 109,444 14 5 2018 159,688 23 4,93993 164,628 15 101,250 00 18,562 50 5,23051 39,585 14 50,750 00 (11 164 86) 98,279 28 6 2019 164,298 87 5,08812 169,387 00 106,312 50 20,250 00 5,38742 37,437 07 50,375 00 (12 937 93) 85,34136 7 2020 169,047 84 5,24077 174,288 61 106,312 50 20,250 00 5,54905 42,177 06 - 42,177 06 127,518 42 8 2021 173,939 28 5,39799 179,337 27 106,312 50 20,250 00 5,71552 47,059 25 - 47,059 25 174,577 66 9 2022 178,977 45 5,55993 184,537 38 106,312 50 20,250 00 5,88698 52,087 90 - 52,087 90 226,665 56 10 2023 184,166 78 5,72673 189,893 51 106,312 50 20,250 00 6,06359 57,267 41 - 57,267 41 283,932 98 1,625,392 72 50,315 65 1,675,708 37 632,812 50 194,062 50 53,275 40 795,557 98 511,625 00 283,932 98 usable sp rentable space 6,750 6,75000 Projected increase figures provided by Columbia Hospitality - increases 3% per year Income before Interest, Taxes & Depreciation Lease to Transit - estimate only, amount has not yet been negotiated Lease assumes first five years no payment in lieu of improvements Assumes City mterfund loan for $500,000 toward improvements 10/10/201312 11 PM 10/16/2013 © COLUMBIA ��� IIOSPITALITY rind KHSap Conference Center Expansion Project A Partnersh p of The City of Bremerton / Map Public Facilities District / Kitsap Transit / Columbia Hospitality ruLErxawaeutrr- 4 nWN Ertr0.WCE rborside Fountain Par - �^ e i r t I r - �r n Fountain Roo ace _ r � t 1M1B9 alrrthq f1prP k � � a � �s � D7- � ✓„ S v J Y L 4T• sl" aar•aa Mrra�a s 4 s J 1 10/16/2013 Business Plan Bye , e ss�P n � ► . • �'' C � �.`�I�T�Ej� ' +rt ",�^ �h �i'Y 43s.r r . ....��,i IVI G� 3 = L cj it Vie' o e S le h , ; �i pot�te E 7 �ed;�� � ° ve f "� n $516,360 ann 6 ,L0 ne n c cr6 _ d Project Budget Facility Lease ' — source - - ciiiti istr{P + a re =- _ 10 �r ij §e etwe� �t bran It�Cit y 2 — ; • Op on yea;ti enslons -V0 ye total If invoked) ` An 8,445 �$� rk _" ' $`l p�l� square fob t5f space $131,134 r n with sales tax � ' $22,407 tfi n coMingency ° $405,000 cred rs lease) In o 1 Io 1 628 of tek ant Improve is c$1� _ oostoverresources r resources ° $2 75 r squa�i< �t�pr common area $20, k I u ` (O�st $3 u r resourcrc malnte es Questions I Contacts Patty Lent John Clauson Mayor city of Bremerton Executive Director Knsap Transit 360.473 5266 1 360 473 -5883 fax 360.478.62231 360 - 4796962 fax o�.lent/ald hr�Mnn wa us InhnnIDkltuotmnsk� Mike Walton Anne Bakker n Atment Analysis Executive Director General Manager Kamp Conference Center ro)ed igned and�Ilddlf�s'reteived Khsap Public Facilities District 360-073 55011360-377 3860 fax \ z I �r�r 18851360b98.6043fax ahakker(dkftmnconferenrroente = 360!98 s L--` ' r 'suction authorization to proceed ChalMard _ Becky Masart Public Works & Utilities Director ndru a d Finance Director City of Bremerton City of Bremerton i ` 360 473 5722 1360-473 5200fax 360 -473 5758 1360 473 2330fax 31 1' 014 hednr.hazarti®tl.hremerton waus dial.martinkya.hremerten.wa uz 2 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT Interlocal Agreement with the Study Session Date Sept 25 & Oct 9, 2013 Kitsap Public Facilities District (KPFD) for COUNCIL MEETING Date October 16, 2013 Funding of the Kitsap Conference Center Department PW &U Expansion Project Presenter Martin Phone X 5758 SUMMARY In June of this year, the Kitsap Public Facilities District Board awarded $400,000 to the City for the Conference Center Expansion Project This interlocal agreement outlines the actions and responsibilities of both the City and the Public Facilities District related to this funding ATTACHMENTS Proposed Interlocal Agreement FISCAL IMPACTS (Include Budgeted Amount) A fund for this project has been established Revenue includes $400,000 from the Public Facilities District, $500,000 from the City, and $200,000 from Kitsap Transit STUDY SESSION AGENDA ❑ No Discussion 0 Full Presentation STUDY SESSION ACTION ❑ Consent Agenda 0 General Business ❑ Public Hearing RECOMMENDED MOTION Move to approve the Interlocal Agreement with the Kitsap Public Facilities District and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/12 DRAFT _ FOR REVIEW INTERLOCAL AGREEMENT REGARDING FUNDING FOR EXPANSION OF THE KITSAP REGIONAL CONFERENCE CENTER RELATED DOCUMENTS - INTERLOCAL AGREEMENT REGARDING FUNDING, DEVELOPMENT AND OPERATION OF THE KITSAP REGIONAL CONFERENCE CENTER (MARCH 25, 2002) - FIRST AMENDED & RESTATED INTERLOCAL AGREEMENT REGARDING FUNDING, DEVELOPMENT AND OPERATION OF THE KITSAP REGIONAL CONFERENCE CENTER (✓ULY28 2003) This Interlocal Agreement ( "Agreement ") is entered into as of October XX, 2013, between the City of Bremerton ( "the City "), a first class charter city, duly organized and operating pursuant to the Constitution and laws of the State of Washington, and the Kitsap Public Facilities District ( "the KPFD "), a municipal corporation organized and operating under the laws of the State of Washington, as established by Kitsap County, pursuant to Chapter 36 100 RCW RECITALS WHEREAS, the County Commissioners established the PFD pursuant to Chapter 36 100 RCW ( "the Chapter ") to perform any function or combination of functions authorized by that chapter, and WHEREAS, the KPFD is authorized by RCW 36 100 030 to acquire, construct, own, remodel, maintain, equip, re- equip, repair, and operate "regional centers," as defined in RCW 35 57 020, and WHEREAS, RCW 82 14 390 authorized the KPFD to impose a 0 033% sales and use tax (the "Sales Tax "), which operates to shift a share of the State's sales and use tax revenues to public facilities districts at no additional cost to taxpayers, and WHEREAS, the KPFD has imposed the Sales Tax authorized by RCW 82 14 390, and WHEREAS, the Sales Tax may be applied to acquire, remodel, finance, and operate a regional special events center as defined in RCW 35 57 020, and WHEREAS, the KPFD and the City in 2002 decided to cooperate in establishing a "regional center" as defined in RCW 35 57 020, and WHEREAS, the KPFD and the City implemented their decision to establish this regional center by entering into that certain Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 ( "the Original ILA ") which was amended and restated on July 28, 2003 ( "the First Amended & Restated ILA ") , and Signed (insert Date) WHEREAS, the KPFD's funding of the improvements as set forth in the Original ILA and the First Amended & Restated ILA were part of a larger project as defined as the Project in the Original ELA and the First Amended & Restated ]ILA, and WHEREAS, the City completed the improvements to the Kitsap Regional Conference Center called for in the Original ILA and the First Amended & Restated ILA and has operated those improvements consistent with the objectives of the Original ILA and the First Amended & Restated ILA, and WHEREAS, the City proposes to expand the Kitsap Regional Conference Center from its current 10,000 SF size by utilizing an additional 7,000 SF, primarily on the third floor of the existing conference center building at an estimated cost of $1,100,000 ( "the Additional Improvements "), and WHEREAS, the KPFD has collected more Sales Tax than had been originally projected when the Sales Tax was imposed as authorized by RCW 82 14 390, and WHEREAS, the KPFD is willing to provide additional funding for the construction of some portion of the Additional Improvements to Regional Conference Center, and WHEREAS, the Additional Improvements to the Kitsap Regional Conference Center are within the scope of the parties' Original ILA and the First Amended & Restated ILA and consistent with the purposes of the Chapter, NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties agree as follows AGREEMENT 1 Purpose of Agreement The KPFD and the City are entering into this Agreement pursuant to RCW 36 100 030 and RCW 39 34 030 The purpose of this Agreement is to set forth the rights and responsibilities of each of the parties with regard to the funding, development, and operation of the Additional Improvements to the Kitsap Regional Conference Center This Agreement supplements, but does not replace, that certain Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 ( "the Original ILA ") which was amended and restated on July 28, 2003 ( "the First Amended & Restated ILA "), provided, however, that in the event a specific provision of this Agreement conflicts with the Original ILA or the First Amended & Restated ILA, the terms of this Agreement shall control 2 Additional Improvements The KPFD and the City have agreed that the Additional Improvements are important to the development and the continued vitality and use of the Kitsap Regional Conference Center KPFD and the County agree that the City shall be responsible for the development, design, calling for bids, and construction of Additional Improvements to the Kitsap Regional Conference Center The KPFD shall provide partial funding of the Additional Improvements, as set forth -2- herein 3 Funding The KPFD and the City are prepared to fund Additional Improvements with a current estimated cost of approximately $1,100,000 (One - Million and One Hundred Thousand Dollars) Of this cost, the KPFD agrees to make one payment of $400,000 (Four Hundred Thousand Dollars) to the City The payment shall be made within 30 (Thirty) days of the City entering into a construction contract and obtaining permits required to begin construction In the event the cost of the Additional Improvements exceeds the City's current estimate of the cost, the City may elect to either fund the additional expense the Additional Improvements, or elect not to fund and construct any or all of the Additional Improvements In the event the City elects not to fund and construct any or all of the Additional Improvements and such reduction exceeds ten percent of the the City's current estimate of the cost, the KPFD's obligation to fund the Additional Improvements shall be reduced pro rata based upon the original estimated cost of constructing the Additional Improvements The KPFD may then allocate such uncommitted funds to any of its other obligations, projects, or expenses that it, in its sole discretion, decides to fund 4 Lead Agency Responsibilities. The City, on behalf of the KPFD and itself, will (i) be the agency with the primary responsibility for the development of the Additional Improvements to the Kitsap Regional Conference Center, (u) fund (in conjunction with the KPFD), acquire, design, construct, own (subject to the rights of the landlord in the lease with the City for the improved premises), operate, and maintain the Additional Improvements to the Kitsap Regional Conference Center, and (iii) otherwise administer the development, operation, and maintenance of the Kitsap Regional Conference Center for the benefit of itself, the KPFD, and the residents of the County 5 Reporting Requirements The City shall keep the KPFD informed as to the status of the design, bidding, construction, funding, and completion of each mayor component of the Additional Improvements As they are developed, the City shall provide preliminary schematic and design development documents, drawings, plans, and specifications to the KPFD for its review and comment When the final design documents, drawings, plans, and specifications for each of the Additional Improvements are completed, such design documents shall be submitted to the KPFD for its review and comment The KPFD shall also be notified when the City has awarded any bid for the construction of one or all of the Additional Improvements, and, further, shall provide to the KPFD a copy of each contract entered into by the City with regard to each mayor component of the Additional Improvements Once construction of each mayor component of the Additional Improvements is under way, the City shall provide the KPFD with a monthly status report in a mutually acceptable form regarding each mayor component of the Additional Improvements At a minimum, the monthly status report form shall include information regarding current cost projections and costs incurred per budget line item This monthly status report shall be due by the 15` of each month and shall reflect costs incurred in the previous month -3- 6 Administrator This Agreement does not establish or create a separate legal entity or a point board The City shall be the administrator (within the meaning of RCW 39 34 030(4)) of this cooperative undertaking for the provision and operation of the Additional Improvements to the Kitsap Regional Conference Center including any of the following acquiring, designing, constructing, owning (subject to the rights of the landlord in the lease with the City for the improved premises), remodeling, maintaining, equipping, re- equipping, repairing, financing, managing, scheduling, and operating the Additional Improvements as provided for in this Agreement 7 Non - Discrimination The City shall administer the provision and operation of the Kitsap Regional Conference Center, including the Additional Improvements, in such a manner as to provide residents of the County with access to the Kitsap Regional Conference Center without regard to their place of residence The County shall not discriminate with respect to fees charged, conditions for use, attendance, or other access to the Kitsap Regional Conference Center on the basis of such residency 8 Insurance The City agrees to acquire and maintain insurance on the Kitsap Regional Conference Center, including the Additional Improvements, against risks, accidents, or casualties, at least to the extent that insurance is usually carried by public entities operating like properties and at least to the extent that such policies are available at reasonable cost, to protect the Kitsap Regional Conference Center against loss In the event of any loss or damage, the City will promptly apply the proceeds of any insurance policy to the extent necessary to repair or replace (or cause the repair or replacement of) the damaged portion of the insured property to the extent economically viable Insurance described in this Paragraph shall be in the form of policies or contracts for insurance with insurers of good standing and shall be payable to the City, or in the form of self - insurance by the City The City shall establish such funds or reserves that it deems are necessary to provide for its share of any such self - insurance 9 Environmental Law Compliance The City shall be responsible for complying with all environmental laws applicable to construction of the Additional Improvements at the Kitsap Regional Conference Center This includes, but is not limited to, City regulations, the State Environmental Policy Act ( "SEPA "), CERCLA (42 U S C § 9603), MTCA (RCW 70 105(D)), and the Clean Water Act (33 U S C § 1321) To the extent required by WAC 197 -11 -944, the County shall be the nominal lead agency, whereby the City shall be responsible for complying with the duties of the lead agency under all applicable SEPA rules 10 Maintenance, Operation, and Legal Compliance The City shall manage, operate, and maintain the Kitsap Regional Conference Center including the Additional Improvements, at all times in a safe and clean manner The City shall -4- provide (either directly or by contract) all management, supervision, personnel, materials, equipment, services, and supplies necessary to operate, maintain, and repair the Additional Improvements to the Kitsap Regional Conference Center (subject to the rights and obligations of the landlord in the lease with the City for the improved premises) and shall take all reasonable precautions to prevent damage, injury, or loss by reason of or related to the construction, operation, and maintenance of the Additional Improvements to the Kitsap Regional Conference Center to any person or property The City shall comply with all applicable laws and ordinances in constructing, operating, and maintaining the Additional Improvements to the Kitsap Regional Conference Center The City shall undertake all modifications to the Additional Improvements to the Kitsap Regional Conference Center required to comply with all applicable laws, regulations, .judgments, and orders 11 Appointment as Agent Except with respect to the express undertakings of the KPFD in this Agreement, the KPFD hereby appoints the City as its agent with respect to the provision, construction, and operation of the Kitsap Regional Conference Center, including the Additional Improvements, but not otherwise, with full power and authority in connection therewith to make all management and operational decisions and take all actions necessary to carry out this ,joint undertaking without further need or requirement to consult with or obtain approval from the KPFD in connection with matters relating to the Kitsap Regional Conference Center 12 City Indemnity Obligations The City shall defend, indemnify, and hold the KPFD, and its respective elected officials, officers, employees, and agents ( "KPFD Indemmtees ") harmless from all claims, regardless of the nature of the claim, arising directly or indirectly from the planning, permitting, construction, maintenance, and operation of the Kitsap Regional Conference Center, including the Additional Improvements, except for claims arising from the sole negligence of any KPFD Indemnitee In the case of concurrent negligence of the City and a KPFD Indemmtee, each party shall, unless otherwise agreed, defend itself and hold the other party harmless from their proportionate share of the resulting damages This indemnity and hold harmless obligation shall extend to all claims of whatsoever kind and nature It shall include attorneys' fees, expert witness fees, court costs, arbitration costs, administrative fines and penalties, and any other direct expense that is a direct i consequence of a breach of any provision of this Agreement or any negligent act or failure to act It shall include the duty to promptly accept tender of defense and provide defense to the KPFD Indemmtees 13 KPFD Indemnity Obligations The KPFD shall defend, indemnify, and hold the City, and its respective elected officials, officers, employees, and agents ( "City Indemnitees ") harmless from all claims, regardless of the nature of the claim, arising directly or indirectly from any breach by the KPFD of this Agreement or any negligent acts of the KPFD for which the KPFD is solely responsible This indemnity and hold harmless obligation shall extend to all claims of whatsoever kind and nature It shall include attorneys' fees, expert witness fees, court costs, arbitration costs, administrative fines and penalties, and any other direct expense that is a direct consequence of a breach of any provision -5- of this Agreement or any negligent act or failure to act It shall include the duty to promptly accept tender of defense and provide defense to the City Indemnitees 14 Interlocal Cooperation Act Provisions The parties acknowledge that they have entered into this Agreement pursuant to the express authority granted to them by RCW 36 100 030(2) and RCW 36 01010, pursuant to RCW 39 34 100, the powers and authority conferred by the Interlocal Cooperation Act (Chapter 39 34 RCW) are supplemental to powers or authority conferred by RCW 36 01 010 and RCW 36 100 030(2), and nothing contained in the Interlocal Cooperation Act limits the authority or power of either party to contract pursuant to RCW 36 01 010 and RCW 36 100 030(2) To avail themselves of the supplemental powers and authority granted by the Interlocal Cooperation Act, the parties agree that a No separate legal or administrative entity within the meaning of RCW 39 34 030(3)(b) or "point board" within the meaning of RCW 39 34 030(4)(a) is created by this Agreement, b The City's Director of Public Works & Utilities, is appointed as the "administrator" within the meaning of RCW 39 34 030(4)(a) and is responsible for administering the City's rights and duties set forth in this Agreement, and the KPFD's president is appointed as the "administrator" within the meaning of RCW 39 34 030(4)(a) and is responsible for administering the KPFD's rights and duties set forth in this Agreement, c Paragraphs 2, 3, and 4 of this Agreement set forth the manner in which property is to be acquired, held, and disposed of under this Agreement, as required by RCW 39 34 030(3)(e) and RCW 39 34 030(4)(b), and d The City will, pursuant to RCW 39 34 040, cause this Agreement to be filed with the Kitsap County Auditor immediately upon the full execution hereof by the parties 15 Available Legal Remedies The parties have the right to exercise any and all of the following remedies, singly or in combination, in the event that a party violates any material provision of this Agreement a Commence an action for equitable or other relief, including injunctive relief, or b Seek a writ of mandamus to compel performance, or C Commence an action seeking specific performance of any provision that reasonably lends itself to such remedy -6- 16 Procedure in the Event of Default Before exercising any of the available legal remedies the party alleging a breach ( "Party ") shall follow the procedure below a Notice of Violation In the event that the Party believes that the other party has not complied with the terms of this Agreement and is a defaulting party ( "Defaulting Party "), the Party shall notify the Defaulting Party in writing, by certified mail, of the nature of the alleged non - compliance b The Defaulting Party's Right to Cure or Respond The Defaulting Party shall have ten (10) days from the receipt of notice described above, to (a) respond to the Party, or (b) to cure such default or, in the event that by nature of the default such default cannot be cured with the ten (10) day period, initiate steps to remedy such default as promptly as possible The duty to cure includes the duty to cure all harms caused by the acts or omissions of the Defaulting Party At the end of the ten (10) day period, the Defaulting Party shall notify the Party, in writing, of the steps it has taken to cure the default, if any, if the cure is not complete, the reason it is not complete and the protected date for completion, and if the default is disputed, the complete basis for that contention c If the Party determines that the Defaulting Party did not cure or initiate steps to cure to the Party's satisfaction, after the notice required herein was provided, then the Party may exercise its available remedies 17 Supplemental Documents The parties agree to complete and execute all supplemental documents necessary or appropriate to implement fully the terms of this Agreement 18 Duration of Agreement This Agreement shall continue in full force and effect until the soonest of the time that the parties have fully performed their respective obligations under this Agreement, the City's lease for the premises that contain the Additional Improvements installed and funded as set forth herein has expired or terminated, that the KPFD is no longer legally entitled to collect Sales Tax, or that this Agreement has been terminated by agreement of the parties 19 Governmg Law; Venue This Agreement is governed by and shall be construed in accordance with the substantive laws of the State of Washington and shall be liberally construed so as to carry out the purposes hereof Except as otherwise required by applicable law, any action under this Agreement shall be brought in the Superior Court of the State of Washington in and for Kitsap County -7- 20 Notices All notices and other written communications required by this Agreement shall be in writing and, except as expressly provided elsewhere in this Agreement, shall be deemed to have been given at the time of delivery if personally delivered, or at the time of mailing if mailed by first class, postage pre -paid and addressed to the party at its address as stated below or at such address as any party may designate at any time in writing To KPFD [Insert] Kitsap Public Facilities District To City City Clerk City of Bremerton 345 6` Street, Suite 600 Bremerton, WA 98337 21 Severabdhty It is the intent of the parties that if any provision of this Agreement or its application is held by a court of competent jurisdiction to be illegal, invalid or void, the validity of the remaining provisions of this Agreement or its application to other entities, or circumstances shall not be affected The remaining provisions shall continue in full force and effect The rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular invalid provision However, if the invalid provision or its application is found by a court of competent jurisdiction to be substantive and to render performance of the remaining provisions unworkable and non - feasible, and is found to seriously affect the consideration and/or is inseparably connected to the remainder of this Agreement, then the entire Agreement shall be null and void 22 Complete Agreement This Agreement, together with that certain Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 ( "the Original ELA ") which was amended and restated on July 28, 2003 ( "the First Amended & Restated II.A ")represent the entire agreement between the parties concerning the Kitsap Regional Conference Center This Agreement may not be amended except as provided herein 23 Bond Covenants Nothing in this Agreement is intended to affect or in any way modify the bond covenants previously made by the City in that Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 ( "the Original ILA ") which was amended and restated on July 28, 2003 ( "the First Amended & Restated ILA ") -8- 24 Modification No change, termination or attempted waiver of any of the provisions of this Agreement shall be binding on any of the parties unless executed in writing by authorized representatives of each of the parties This Agreement shall not be modified, supplemented, or otherwise affected by the course of dealings between the parties 25 Benefits This Agreement is entered into for the benefit of the parties to this Agreement only and shall confer no benefits, direct or implied, on any third persons 26 Assignment The rights granted by this Agreement may not be assigned without the written consent of all the parties hereto 27 Execution in Counterparts This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument 28 Disclaimer With Respect to Loans and the KPFD ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW CITY OF BREMERTON Attest Shannon L Corm, City Clerk Patty Lent, Mayor Approved as to form Roger Lubovich, City Attorney Signatures Continue on Next Page -9- Attest KITSAP PUBLIC FACILITIES DISTRICT Anne Blair, Treasurer Teresa Osmski, Chair Approved as to form Brian E. Lawler, General Counsel Socius Law Group PLLC R \Legal\Legal\Files \Current Active Files \Conference Center\Harborside Conference Center Expansion\IL.A re Additional Fundwg2 Clean doc - 1�- 13 Mayor Patty Lent mav«40db"WW10 .Wa us October 4, 2013 345 6th Street SuBe 6W Mike Walton Bremerton WA 98337 1873 Executive Director Kitsap Public Facilities District 9657 Levin Road NW, Suite 260 Silverdale, WA 98383 Dear Director Walton, I am writing you to respectfully request the Board of the Kitsap Public Facilities District authorize a 5% increase in the grant awarded to the Kitsap Conference Center Expansion Project Following the Board's $400,000 grant award in July, and in partnership with Kitsap Transit and Columbia Hospitality, the City moved forward to design and bid this project All bid information is now in The City received an excellent slate of bids for the Conference Center work (14 bids), however, the low bids were still higher than our $900,000 project budget The attached summary sheet outlines our path forward We propose the additional funding come from 1) Kitsap Transit, by partially re- purposing its $200,000 commitment, originally earmarked for elevator improvements only, to include other building improvements included in the Conference Center expansion contract, 2) Applying Columbia Hospitality's Furniture, Fixtures and Equipment allocation to the contract work, (reallocating the FF &E expense to the operational budget), and 3) This request for an additional $20,000 from the Kitsap Public Facilities District This plan ensures all of the original goals for the project remain on track, resulting in complete new conference center space, retrofitted elevators which will be smoother and faster, and interior improvements to the elevators to make them brighter and more inviting Recognizing that we also need to ensure funds are available for contingencies, this plan provides a 3% reserve We recognize this is challenging, but we believe it is doable We appreciate the Board's support of this wonderful project, and look forward to seeing all Board Members at the ribbon cutting in the spring of 2014 Sincerely, Patty t Mayo Encl AGENDA BILL CITY OF BREMERTON CITY COUNCIL 0 ■ EEEW0000A00aE00W00K00000 00W0a0000a00aaaffnE000000000000EEE00EE000EM0E00EE0000N0EEe00001 SUBJECT Lease Agreement with Kitsap Study Session Date October 9, 2013 Transit for the Kitsap Conference Center COUNCIL MEETING Date October 16, 2013 Expansion Department PW &U Presenter Martin / Lubovich Phone X 5758 SUMMARY This lease agreement provides the foundation for the City's investment into the expanded Kitsap Conference Center ATTACHMENTS Proposed Lease Agreement FISCAL IMPACTS (Include Budgeted Amount) This 20 -year lease will be funded from the incremental increase in revenue that will be generated by the new Conference Center space STUDY SESSION AGENDA ❑ No Discussion ❑x Full Presentation STUDY SESSION ACTION ❑ Consent Agenda ❑X General Business ❑ Public Hearing RECOMMENDED MOTION Move to approve a Lease Agreement with Kitsap Transit for expansion of the Kitsap Conference Center and authorize the Mayor to execute the agreement with substantially the same terms and conditions as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/12 BREMERTON HARBORSIDE TRANSIT BUILDING LEASE AGREEMENT BETWEEN KITSAP TRANSIT AND THE CITY OF BREMERTON Landlord: Kitsap Transit Tenant: The City of Bremerton Date This Lease was prepared by Ronald C Templeton 3212 NW Byron Street #104 Silverdale, WA 98383 360- 692 -6415 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE + TRANSIT HARBORSIDE BUILDING LEASE AGREEMENT THIS LEASE is made as of this day of , 2013, by and between KITSAP TRANSIT, a Washington Municipal Corporation (hereinafter referred to as "Landlord "), and the CITY OF BREMERTON, a Washington Municipal Corporation (hereinafter referred to as "Tenant ") LEASE SUMMARY Section 1.1 Premises Defined The Building (a) Name Transit Building at Bremerton Harborside (b) Address 100 Washington Avenue Bremerton, Washington (c) Total Rentable Area of Building 37,625 square feet The Premises (a) Total Rentable Area of Tenant's Space Approx 6,750 sq ft 1 (b) Floor Location Third floor, depicted on Exhibit B Section 2.1 Use of Premises (a) Permitted uses Conference Center Related Uses 1 Subject to potential adjustment See Section 14 10 3 -13P M CITY OF BREMERTON, HARBORSIOE -1- Section 3.1 and 3.3 Lease Term (a) Commencement Date First day of first calendar month after 120 days has elapsed from the date of the issuance of Tenant's Building Permit (b) Term Up to 20 years Section 4.3 Tenant Improvement Allowance $405,000 00 by way of Rent Credit for 48 Months Section 5.1 Minimum Rent Annual Rent Per Year Monthly Rent Rentable Sq Ft (RSF) Years 1 -4 rent credit $8,437 50 $1500 Years 5 $8,43750 $1500 Years 6 -10 $8,85938 $1575 Years 11 -15 $9,30234 $1654 Years 16 -20 $9,76746 $1736 Section 5.3 Tenant's Estimated Share of Operating Costs Operating Costs - Additional Rent Monthly Annual/RSF Years 1 -5 $1,54688 $275 Years 6 -10 $1,68750 $300 Years 11 -15 TBD TBD Years 16 -20 TBD TBD During the Initial Term, Tenant's estimated share of the Operating Costs will be adjusted for actual shared costs at the end of each calendar year in accordance with Section 5 3 2 Subject to potential adjustment See Section 14 3 Subject to potential adjustment See Section 14 4 Subject to separately metered utilities Parking and leasehold excise tax are excluded See Exhibit D 10 3 -13P M CITY OF BREMERTON, HARBORSIDE -2- Section 16.1 Addresses for Notices (a) Landlord (b) Tenant Kitsap Transit City of Bremerton Attn Executive Director Attn City Clerk 60 Washington Avenue #200 345 Sixth Street #600 Bremerton, WA 98337 Bremerton, WA 98337 Copy to Copy to Ronald C Templeton Roger Lubovich General Counsel Bremerton City Attorney 3212 N W Byron Street, Suite 104 345 Sixth Street, Suite 600 Silverdale, WA 98383 Bremerton, WA 98337 Fax (360) 692 -1257 Email rctempletonC telebyte com 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -3- BREMERTON HARBORSIDE TRANSIT OFFICE BUILDING LEASE AGREEMENT ARTICLE 1 PREMISES Section 1.1 Premises Defined. Landlord is the owner of a building known as the Transit Building or Bremerton Harborside Building, located at 100 Washington Avenue, Bremerton, Washington in a complex which includes the Bremerton Harborside Conference Center (the "Conference Center ") Landlord hereby leases to Tenant and Tenant hereby leases from Landlord those certain premises in the Building located on the third floor Site Plan attached as Exhibit B (hereinafter referred to as the "Premises ") Those portions of the Premises for Tenant's exclusive use is sometimes referred to as "Tenants Space" or the "Interior of the Premises" Section 1.2 Common Areas. So long as Tenant occupies the Premises under the terms of this Lease, Tenant, its licensees, invitees, customers and employees shall have the non- exclusive right to use all common entrances to the Building, the first floor lobby, the elevators and stairways, the third floor hallways and restrooms, and the public areas which abut the Building (the "Common Areas ") in common with Landlord, other building tenants, and their respective licensees, invitees, customers and employees The use of the Common Areas shall be subject to the terms and conditions of this Lease and any reasonable rules and regulations promulgated by Landlord regulating the use of such Common Areas The Common Areas shall at all times remain under the sole control and administration of Landlord Tenant shall not place any object or barrier within the Common Areas, or otherwise obstruct the use of the Common Area Section 13 Landlord's Reserved Rights. Landlord reserves the right from time to time (a) to install, use, maintain, repair, relocate and replace pipes, ducts, conduits, wires, and appurtenant meters and equipment for service to the Premises or to other parts of the Building which are above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas of the Building which are located within the Premises or located elsewhere in the Building, (b) to alter or expand the Building, and (c) to alter, relocate or substitute any of the Common Areas, provided, that such alteration, relocation or substitution of the Common Areas does not materially diminish access or visibility to the Premises Section 1.4 Area Dimensions. The usable Floor Area of the Tenant's Space and Rentable Square Feet of the Tenant's Space and Building are based on the Building Architectural Plans provided Landlord during or following the completion of the construction of the Building 10 -3 13P M CITY OF BREMERTON, HARBORSIDE -4- The calculations shall exclude the third floor "dead space" adjacent to the elevators of approximately 90 square feet and the first floor Elevator Lobby using the `SOMA Standard" Unless on or before the Commencement Date, Tenant provides a Certification (as defined below) that the Total Rentable Areas of the Building and of Tenant's Space is other than the figures set forth in the Lease Summary, the figures in the Lease Summary shall be conclusive and binding on Landlord, Tenant and their respective successors If, however, Tenant delivers a written certification from its Architect setting forth alternative figures (based on BOMA standards), including a statement that the Architect personally conducted or oversaw all area measurements and calculations, then the Architect's alternative figures shall be conclusive and binding on the Parties, but only if Tenant executed and delivers to Landlord, within fifteen (15) days of the Commencement Date, a duplicate original Acceptance Acknowledgment in the form attached as Exhibit C, in which case, the Minimum Rent and Additional Rent shall be adjusted accordingly ARTICLE 2 BUSINESS PURPOSE AND USE Section 2.1 Permitted Uses. Tenant owns, and through a management contract with its subcontractor, operates the Conference Center The purpose of this Lease is to enable Tenant to expand the capacity and capability of the existing Conference Center by leasing additional space Accordingly, Tenant shall use the Premises for Conference Center uses including office space, break out space, food service and related uses Tenant shall not use the Premises for any other purposes without the prior written consent of Landlord, which consent shall not be unreasonably withheld Section 2.2 Prohibited Uses. Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which will (a) in any way increase the existing rate of or affect any policy of fire or other insurance upon the Building or any of its contents or cause a cancellation of any insurance policy covering any part thereof or any of its contents, (b) obstruct or interfere in any way with the rights of other tenants or occupants of the Building, including their rights of quiet enjoyment, or (c) cause, maintain or permit any nuisance in, on or about the Premises Tenant shall not place upon or install in windows or other openings any signs, symbols, drapes or other material without written approval of Landlord Landlord may adopt from time to time rules and regulations which Tenant shall observe with respect to the use of the Premises so long as they are not in conflict with the permitted use of the Premises as set forth in the Lease Summary Section 2.3 Compliance With Laws. Tenant shall at all times comply with all laws, ordinances and any regulation promulgated by any governmental authority having jurisdiction over the Building and/or the Premises 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -5- ARTICLE 3 TERM Section 3.1 Term. The term of this Lease shall be up to twenty years consisting of an initial term of ten (10) years (the "Initial Term ") and two extension options as provided in Section 3 3 below, if exercised, commencing on the Commencement Date, and ending on the last day of the month in which the 10 anniversary of the Commencement Date occurs (the "Expiration Date "), unless sooner terminated or extended as provided herein For purposes of this Lease, the word "Term" shall mean the Initial Term and any Extension Term (as defined in Section 3 3 below) Section 3.2 Lease Year. For the purpose of this Lease, the term "Lease Year" shall mean and refer to that period of twelve (12) full consecutive calendar months beginning with the first full calendar month of the Term and each subsequent period of twelve (12) consecutive calendar months during the Term, provided that if the Term commences on other than the first day of a calendar month, then the initial fractional month of the Term plus the next succeeding twelve (12) full calendar months shall constitute the first Lease Year of the Term Section 3.3 Extensions. Section 3.3.1 Extension Option. Provided Tenant is not then in default under this Lease beyond the applicable cure period, Tenant shall have the option to extend the term of this Lease for two (2) consecutive five (5) year period(s) (each an "Extension Term "), upon the same terms and conditions as contained in this Lease, except the Minimum Rent for each Extension Term shall be established in accordance with the provisions set forth in Section 5-55 1 below To exercise an extension option, Tenant shall give Landlord written notice at least one hundred and twenty (120) days prior to the then current Expiration Date ( "Tenant's Extension Notice ") Tenant's Extension Notice shall be effective to extend the Term of the Lease without further documentation except as expressly provided in Section 3 3 2 below Section 3.3 2 Acknowledgment. At any time after Tenant has exercised its option to extend this Lease, Landlord and Tenant, upon request of either, will sign and acknowledge a written memorandum evidencing Tenant's exercise of the option and stating the date to which such extension Term will extend and the rental rates that will be applicable during such Extension Term Section 3.3 3 Restrictions. The Option to Extend is granted for Tenant's personal benefit and may not be assigned or transferred by Tenant, either voluntarily or by operation of law, in any manner whatsoever, without the express written consent of Landlord In the event that Landlord consents to an assignment of this Lease, the Option to Renew and Renewal Terms granted hereunder shall be void and of no further force and effect, whether or not Tenant shall have purported to exercise the Option to Renew prior to such assignment, unless Landlord has expressly consented thereto 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -6- ARTICLE 4 CONDITION OF THE PREMISES, POSSESSION AND TENANT IMPROVEMENTS Section 4.1 Condition Of The Premises. Tenant's Space has not been finished and all the improvements necessary or desirable for Tenant's occupancy and use are the responsibility of Tenant, subject to the provisions of the Section 4 2 and 4 3 below Landlord represents that to the best of its information, knowledge and belief, all structural elements of the Building including the foundation, roof, roof membrane and roof system, exterior walls, plumbing, electrical and other mechanical systems (a) meet and comply with all federal, state and local laws, ordinances and regulations and all handicapped accessibility standards for the disabled, including, without limitation, those promulgated under the Americans With Disabilities Act ( "ADA "), and (b) are seismically and otherwise sound and in good, workable and sanitary order, condition and repair as of the execution of this Agreement Tenant represents that prior to executing this Lease, Tenant conducted a thorough investigation of the Premises Subject only to the Landlord's maintenance responsibilities as set forth in Article 6, Tenant accepts the Premises in their current "as is" condition Landlord has no responsibility to make any improvements to the Premises or any of the Common Areas Section 4.2 Tenant's Work Section 4.2.1 Submission of Plans and Specifications. 4 2.11 Within thirty (30) days, or other mutually agreed upon time period, following execution of this Lease, Tenant shall furnish to Landlord and Landlord's reviewing architect for review and approval, a total of three (3) sets of architectural prints ( "TI Plan") prepared by a licensed architect and/or architects which detail Tenant's planned construction of the Tenant Improvements for the Tenant's Space ( "Tenant's Work ") Once approved by Landlord, no material changes shall be made in Tenant's TI Plans except with the written consent of Landlord, which consent shall not be unreasonably withheld 4 212 Landlord will review plans and specifications submitted by Tenant in a timely manner, which approval shall not be unreasonably withheld or delayed, but Landlord shall not be liable for delays in Tenant's construction, or costs incurred by Tenant as a result of such delays, related to the review process Landlord shall be deemed to have approved Tenant's TI Plans, unless within 14 calendar days of Landlord's receipt of such plans, Landlord transmits its written and specific objections to Tenant In the event Landlord transmits its written objections, Tenant agrees to make reasonable revisions or modifications in plans and specifications that may be reasonably requested by Landlord as a result of the review process 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -7- Section 4.2.2 Construction Of Tenant's Work. After Landlord's written approval of Tenant's TI Plans, Tenant's Work shall be done at Tenant's sole cost and expense by a licensed and bonded general contractor Before commencing the construction of Tenant's Work, Tenant shall procure, at Tenant's sole cost and expense all necessary building permits All of Tenant's Work shall be undertaken and completed in a timely manner, and in conformance with the approved plans, all applicable building, health and safety codes and applicable industry standards for good workmanship for first class office or conference space Tenant shall pay for all of Tenant's work in the ordinary course, not permit or suffer any liens to be filed against the Premises, improvements or Tenant's interest in the Lease, and save, indemnify and hold Landlord harmless from (i) all costs, expenses and liabilities arising therefrom and (n) injury to person, or damage to the property, the Common Areas or Building arising out of the performance of Tenant's Work not due to the negligence or action or failure to act of the Landlord Tenant shall, prior to physically occupying the Premises, procure a Certificate of Occupancy from the Tenant's Planning Department Section 4.3 Tenant Improvement Allowance. Landlord shall provide Tenant with a Tenant improvement allowance in the amount of Four Hundred Five Thousand Dollars ($405,000 00) by means of a credit (the "Rent Credit ") against the Minimum Rent to become due under the Lease Section 4.4 Landlord's Improvement Expenditures And Contributions. Landlord agrees to expend up to $200,000 00 in Building Improvements as provided in Exhibit F attached hereto ARTICLE 5 RENT Section 5.1 1VLmmum Rent. During the Initial Term of the Lease, Tenant shall pay to Landlord as minimum rental for the use and occupancy of the Premises the minimum rent as specified in the Lease Summary (as may be adjusted in accordance with the provisions of Section 14) This sum shall be referred to herein as the "Minimum Rent " The Minimum Rent shall be paid in advance on the first day of each month during the Term of this Lease Subject to the Rent Credit set forth in Section 4 3 above to which Tenant is entitled, the first installment of Minimum Rent shall be due on the Commencement Date specified in the Lease Summary Section 5.2 Rent. The term "Rent" as used in this Lease shall mean all amounts to be paid hereunder by Tenant whether these sums are designated as Minimum Rent, Additional Rent 10 -3 13P M CITY OF BREMERTON, HARBORSIDE -8- or otherwise as defined in this Lease Rent for any partial year shall be prorated based upon the actual number of months left in such partial year Section 5.3 Operating Costs as Additional Rent. Commencing on the Commencement Date and continuing throughout the Term, Tenant shall pay to Landlord as "Additional Rent" the Operating Costs as specified in the Lease Summary (as may be adjusted in accordance with the provisions of Section 1 4) The term "Operating Costs" represents Tenant's share of all costs, expenses and other charges incurred by Landlord in connection with the operation and maintenance of the Building as a first class, mixed use retail/office building complex Operating Costs include the costs set forth in Exhibit D, excluding the "Exclusions" set forth therein, and excluding the cost of refuse collection which is governed by Section 5 6 below During the Initial Term, Tenant's estimated share of the Operating Costs shall be paid at the amounts set forth in the Lease Summary At the end of each calendar year, Landlord shall deliver to Tenant a written statement setting forth the Actual Operating Costs Allocated to the Premises for the preceding Lease Year If these costs exceed the Tenants estimated share of Operating Costs paid, Tenant shall pay the excess to Landlord as Additional Rent If the statement shows the Actual Operating Costs Allocated to the Premises to be less than the Tenants estimated share of Operating Costs paid, then Landlord shall pay the difference to Tenant If Tenant occupies space for less than calendar year, any partial year shall be prorated based upon the actual number of months space was occupied by Tenant Section 5.4 Operating Cost Extension Term Adjustments. During each Extension Term, Tenant's allocated share of the estimated Operating Costs shall be adjusted after determining the actual Operating Costs for the Building based on the average costs for the preceding 24 month period prior to the commencement of each option period, coupled with any known anticipated increased expenditures for the term of each such Extension Term Section 5.5 Records Landlord shall keep accurate records showing in detail all expenses incurred for Operating Costs These records shall, upon reasonable request, be made available during business hours at the offices of Landlord for inspection and/or audit by Tenant or Tenant's designated agent Section 5.6 Refuse Collection. Refuse containers are located beneath the Conference Center and are shared by the Conference Center, the Building Tenants, Anthony's Restaurant and the Hampton Inn in the following shares (the "Refuse Shares ") Anthony's 39% Conference Center 14% Hotel 8% 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE 9- Landlord (for currently occupied Portions of Transit Building 39% Tenant agrees that if there is a material increase in the refuse generated from the Premises and the Conference Center, there shall be an equitable upward adjustment of Tenant's allocated share and Tenant and Landlord will use their best efforts to induce the above Parties to adjust the allocated Refuse Shares and memorialize the shared use of the Refuse facilities by the above parties Section 5.7 Place Of Payment. All Rent shall be paid to the Landlord on the first day of each month at the address specified in the Lease Summary All payments of Rent to be made hereunder are to be made without deduction, setoff, or prior notice or demand by Landlord ARTICLE 6 MAINTENANCE, REPAIRS AND ALTERATIONS Section 6.1 Services to be Furnished by Landlord. Provided Tenant is not in default under any of the provisions of this Lease beyond any applicable cure period, if any, Landlord shall provide the following services during the Term of this Lease, the cost of all of which (excluding capital costs of original installation) shall be Operating Costs of the Building subject to the provisions of Sections 5 3 and 5 4 6.1.1 Unless metered separately to Tenant, public utilities to the Building shall be furnished in accordance with Exhibit D and Tenant shall be responsible for the distribution of such utilities from Landlord's point of connection at the demising wall throughout Tenant's Space, 6.1.2 Routine maintenance, painting and electric lighting service for all Common Areas and special service areas of the Building in the manner and to the extent deemed by Landlord to be standard and consistent with the operation and maintenance of the Building as a first -class mixed -use office /retail building in the City of Bremerton, and 6.1.3 Security for the Common Areas of the Building, provided however Landlord shall not be liable to Tenant or any employee, invitee, licensee or sublessee of Tenant for losses due to theft or burglary, or for personal injury or damages done by unauthorized persons in the Building Failure by Landlord to any extent to furnish any of the above services, or any cessation thereof, resulting from causes beyond the reasonable control of Landlord, shall not render Landlord liable in any respect for damages to either person or property, nor shall such event be construed as an eviction of Tenant, nor result in an abatement of Rent, nor relieve Tenant from any of Tenant's obligations hereunder (including, but not limited to, the payment of 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -10- Rent) Should any of the equipment or machinery utilized in supplying the services listed herein for any cause cease to function properly, Landlord shall use reasonable diligence to repair the equipment or machinery promptly, but Tenant shall have no right to terminate this Lease, and shall have no claim for a reduction, abatement or rebate of Rent or damages on account of any interruption in service occasioned thereby or resulting therefrom Section 6.2 Tenant's Maintenance And Repairs. Tenant shall be obligated to maintain and to make all repairs to Tenant's Space and to all fixtures installed therein promptly and in a good clean condition and workmanship like manner Tenant shall provide regular janitorial service to Tenant's Space, including at least annual washing of interior windows in order to maintain a clean and professional appearance If Tenant fails to provide these janitorial services, Landlord may at its option provide such services at the expense of Tenant and as Additional Rent Landlord shall be responsible for the washing of exterior windows of the Building, which window washing shall be done according to the schedule determined by Landlord and as part of the Operating Costs of the Building Section 6.3 Tenant's Alterations. Tenant shall make no alterations, modifications or changes to Tenant's Space without Landlord's prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned Any repairs or new construction by Tenant shall be done in conformity with plans and specifications approved by Landlord and shall be performed by a licensed contractor approved by Landlord All work performed shall be done in a workmanlike manner and with materials (where not specifically described in the specifications) of the quality and appearance as exist throughout the Building, and shall become the property of Landlord Landlord may require Tenant to remove and restore any improvements or alterations on the termination of this Lease in accordance with Section 112 below Section 6.4 Liens. Tenant shall keep the Premises and the Property on which the Premises are located, free from any liens arising out of any work performed, material furnished, or obligations incurred by Tenant If Tenant disputes the correctness or validity of any claim of lien, Tenant shall, within ten (10) days after written request by Landlord, post or provide security in a form and amount acceptable to Landlord to insure title to the Property free from the lien claimed ARTICLE 7 INSURANCE AND INDEMNIFICATION Section 7.1 Use; Rate. Tenant shall not do anything in or about the Premises which will in any way tend to increase insurance rates paid by Landlord on policies of liability or casualty insurance maintained with respect to the Building and/or Property In no event shall Tenant carry on any activities which would invalidate any insurance coverage maintained by Landlord 10 -3 13P M CITY OF BREMERTON, HARBORSIDE -11- Section 7.2 Liability Insurance. Tenant shall, during the Lease Term, at its sole expense, maintain in full force a policy or policies of comprehensive liability insurance issued by one or more insurance carriers, insuring against liability for injury to or death of persons and loss of or damage to property occurring in or on the Premises Said liability insurance shall be in an amount not less than Two Million Dollars ($2,000,000 00) combined single limit for bodily and personal injury and property damage Section 7.3 Worker's Compensation Insurance. Tenant shall at all times maintain Worker's Compensation Insurance in compliance with Washington law Section 7.4 Casualty Insurance. Tenant shall pay for and shall maintain in full force and effect during the Term of this Lease a standard form policy or policies of property and all - risk coverage with an extended coverage endorsement covering all interior glass, but specifically excludes exterior building glass, whether plate or otherwise (unless any damage to such glass is caused by the Tenant) and all personal property owned by Tenant located in the Premises Section 7.5 Compliance With Regulations. Tenant shall, at its own expense, comply with all requirements, including installation of fire extinguishers, or automatic dry chemical extinguishing systems, required by insurance underwriters or any governmental authority having jurisdiction thereover, necessary for the maintenance of reasonable fire and extended insurance for the Premises and/or Building Section 7.6 Waiver of Subrogation. Any property and all -risk coverage insurance carried by Landlord or Tenant insuring, in whole or in part, the Building and/or the Premises, including improvements, alterations and changes in and to the Premises made by either of them, and Tenant's trade fixtures therein shall be written in such a manner as to permit the waiver of rights of subrogation prior to loss by either party against the other in connection with loss or damage covered by the policies involved So long as the policy or policies can be so written and maintained in effect, neither Landlord nor Tenant shall be liable to the other for any such loss or damage Either party shall, upon request by the other party, furnish such other party evidence of its compliance with this Section 7 6 Section 7.7 General Requirements. 7.7.1 All policies of insurance required to be carried hereunder by Tenant shall be written by companies licensed to do business in Washington and which are rated A XIII or better in the "Best's Key Rating Guide" Tenant shall, when requested by Landlord, furnish Landlord with a certificate evidencing insurance required to be maintained by Tenant pursuant to this Article 8 and shall satisfy Landlord that each such policy is in full force and effect 10 3 -13P M CITY OF BREMERTON, HARBORSIDE -12- 7.7.2 The policy of public liability insurance required to be carried under Section 7 2 above shall be primary and non - contributing with the insurance carried by Landlord 7.7.3 Each policy required under Section 7 2 shall expressly include, severally and not collectively, as named or additionally named insured thereunder, the Landlord and any person or firm designated by the Landlord and having an insurable interest thereunder, hereinafter called "Additional Insured ", as their respective interests may appear 7.7.4 Tenant shall promptly provide Landlord with written notice of any changes in any of the insurance policies maintained by Tenant The policies of insurance or duly executed Accord Forms 25 and 27 as applicable, Evidence of Insurance Forms evidencing such policies, shall be deposited with Landlord within ten (10) days of the execution of this Lease 7.7.5 If the Tenant fails to procure and maintain insurance as required by this Article 7, the Landlord may obtain such insurance and keep it in effect, and the Tenant shall pay to Landlord the premium cost thereof, upon demand and as Additional Rent, with interest as provided in Section 19 8 below from the date of payment by the Landlord to the date of repayment by the Tenant 7.7 6 The limits of any insurance maintained by Tenant pursuant to this Article 7 shall in no way limit the liability of Tenant under this Lease Section 7.8 Self Insurance And Blanket Insurance. The Tenant may fulfill its insurance obligations hereunder by maintaining either "Self Insurance Coverage" or a so- called "blanket" policy or policies of insurance (collectively referred to as "Alternative Insurance ") All policies of Alternative Insurance must provide by specific endorsement, coverage not less than that which is required hereunder for the particular property or interest referred to herein, provided however that the coverage required by this Article 7 will not be reduced or diminished by reason of use of such Alternative Policies of Insurance Section 7 9 Indemnificat><on . Except to the extent covered by insurance maintained by Landlord or required herein to be maintained by Landlord, Tenant shall indemnify and hold harmless Landlord against and from any and all damages, liabilities, claims and expenses (including without limitation reasonable attorneys' fees and court costs) arising from Tenant's use of the Premises or the conduct of its business or from any activity, work, or thing done, permitted or suffered by the Tenant in or about the Premises, and shall further indemnify and hold harmless Landlord against and from any and all damages, liabilities, claims and expenses (including without limitation reasonable attorneys' fees and court costs) arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the terms 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -13- of this Lease If any such action or proceeding is brought against Landlord, Tenant, upon notice from Landlord, shall defend Landlord against that claim at Tenant's expense by counsel reasonably satisfactory to Landlord Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in or about the Premises from any cause whatsoever except Landlord's negligence or intentionally wrongful conduct and Tenant hereby waives all claims in respect thereof against Landlord Tenant agrees that it will not assert its industrial insurance immunity if such assertion would be inconsistent with Landlord's right to indemnification from Tenant pursuant to this Section 7 9 The parties agree that this provision was mutually negotiated Landlord shall indemnify and hold harmless Tenant against and from any and all damages, liabilities, claims and expenses (including without limitation reasonable attorneys' fees and court costs) arising from Landlord's negligence or intentionally wrongful conduct Landlord agrees that it will not assert its industrial insurance immunity if such assertion would be inconsistent with Tenant's right to indemnification from Landlord pursuant to this Section 7 9 The parties agree that this provision was mutually negotiated ARTICLE 8 DESTRUCTION AND CONDEMNATION Section 8.1 Total Or Partial Destruction. 8.1.1 In the event the Building and/or the Premises is damaged by fire or other perils covered by Landlord's insurance, Landlord shall 8.1.1.1 In the event of total destruction, at Landlord's option, as soon as reasonably possible thereafter, commence repair, reconstruction and restoration of the Building and/or the Premises and prosecute the same diligently to completion, in which event this Lease shall remain in full force and effect, or within sixty (60) days after such damage, elect not to so repair, reconstruct or restore the building and/or the Premises, in which event this Lease shall terminate In either event, Landlord shall give Tenant written notice of its intention within said sixty (60) day period and specify the estimated period of reconstruction In the event Landlord elects not to restore the Building, and/or the Premises, this Lease shall be deemed to have terminated as of the date of such total destruction If the time for reconstruction shall exceed 180 days from the date of Landlord's notice, then Tenant shall have the right to terminate the Lease 8.1.1.2 In the event of partial destruction of the Building and/or the Premises, to an extent not exceeding twenty -five percent (25 %) of the full insurable value thereof, and if the damage thereto is such that the Building and/or the Premises may be repaired, reconstructed or restored within a period of ninety (90) days from the date of the happening of such casualty, and if Landlord will receive insurance proceeds sufficient to cover the cost of such 10 3 -13P M CITY OF BREMERTON, HARBORSIDE -14- repairs, then Landlord shall commence and proceed diligently with the work of repair, reconstruction and restoration and this Lease shall continue in full force and effect If such work of repair, reconstruction and restoration shall require a period longer than ninety (90) days or exceeds twenty -five percent (25 %) of the full insurable value thereof, or if said insurance proceeds will not be sufficient to cover the cost of such repairs, then Landlord either may elect to so repair, reconstruct or restore and the Lease shall continue in full force and effect or Landlord may elect not to repair, reconstruct or restore and the Lease shall then terminate Under any of the conditions of this Section 8 1 12, Landlord shall give written notice to Tenant of its intention within sixty (60) days after such partial destruction If the time for reconstruction shall exceed 180 days from the date of Landlord's notice, then Tenant shall have the right to terminate the Lease In the event Landlord elects not to restore the Building and/or the Premises, this Lease shall be deemed to have terminated as of the date of such partial destruction 8.1.2 Upon any termination of this Lease under any of the provisions of this Section 8 1, the parties shall be released without further obligation to the other from the date possession of the Premises is surrendered to Landlord except for items which have theretofore accrued and are then unpaid 8.13 In the event of repair, reconstruction and restoration by Landlord as herein provided, the rental payable under this Lease shall be abated proportionately with the degree to which Tenant's use of the Premises is impaired during the period of such repair, reconstruction or restoration Tenant shall not be entitled to any compensation or damages for loss in the use of the whole or any part of the Premises and/or any inconvenience or annoyance occasioned by such damage, repair, reconstruction or restoration Tenant shall not be released from any of its obligations under this Lease except to the extent and upon the conditions expressly stated in this Section 8 1 Notwithstanding anything to the contrary contained in this Section 8 1, if Landlord is delayed or prevented from repairing or restoring the damaged Premises within one (1) year after the occurrence of such damage or destruction by reason of acts of God, war, governmental restrictions, inability to procure the necessary labor or materials, or other cause beyond the control of Landlord, Landlord or Tenant, at its option, may terminate this Lease, whereupon Landlord shall be relieved of its obligation to make such repairs or restoration and Tenant shall be released from its obligations under this Lease as of the end of said one (1) year period 8.1.4 If damage is due to any cause other than fire or other peril covered by extended coverage insurance, Landlord may elect to terminate this Lease 81.5 If Landlord is obligated to or elects to repair or restore as herein provided, Landlord shall be obligated to make repair or restoration only of those portions of the Building 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -15- and the Premises which were originally provided at Landlord's expense, and the repair and restoration of items not provided at Landlord's expense shall be the obligation of Tenant 816 Notwithstanding anything to the contrary contained in this Section 8 1, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises when the damage resulting from any casualty covered under this Section 8 1 occurs during the last twelve (12) months of the Term of this Lease or any extension hereof Further, in the event of any damage or destruction occurs during the last 12 months of the Lease that renders the Premises substantially untenable, Tenant shall have the right to terminate this Lease 8.17 Landlord and Tenant hereby waive the provisions of any statutes or court decisions which relate to the abatement or termination of leases when leased property is damaged or destroyed and agree that such event shall be exclusively governed by the terms of this Lease Section 8.2 Condemnation. If the whole of the Property or the Premises, or such portion thereof as shall be required for its reasonable use, shall be taken by virtue of any condemnation or eminent domain proceeding, this Lease shall automatically terminate as of the date of the condemnation, or as of the date possession is taken by the condemning authority, whichever is later Current Rent shall be apportioned as of the date of the termination In case of a taking of a part of the Premises or a part of the Property not required for the reasonable use of the Premises, then this Lease shall continue in full force and effect and the Rental shall be equitably reduced based upon the proportion by which the Store Area of the Premises is reduced This Rent reduction shall be effective on the date of the partial taking No award, settlement in lieu of an award, or any partial or entire taking shall be apportioned, and Tenant hereby assigns to Landlord any award or settlement in lieu of an award which may be made in the taking or condemnation proceeding, together with any and all rights of Tenant now or hereafter arising in or to the same or any part thereof, except for the value of the tenant improvements made by Tenant at Tenant's cost (without a rent credit from Landlord), provided that nothing herein shall prevent Tenant from making a separate claim against the condemning authority for the taking of Tenant's personal property and/or moving costs so long as such claim in no way affects the award to be received by Landlord Section 8.3 Sale Under Threat Of Condemnation. A sale by Landlord to any authority having the power of eminent domain, either under threat of condemnation or while condemnation proceedings are pending, shall be deemed to be a taking under the power of eminent domain for all purposes under this Article 8 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -16- ARTICLE 9 TENANT'S OPERATIONS Section 9.1 General. In using and occupying the Premises, Tenant will at its expense (a) keep the inside and outside of all glass in the doors of the Premises clean, (b) replace promptly any cracked or broken glass of the Premises owned by the Tenant, which specifically excludes exterior building glass, unless such excluded glass is damaged by Tenant or Tenant's operations, with glass of like kind and quality and make available all insurance proceeds from Tenant's plate glass insurance policy for these purposes, (c) maintain the Premises in a clean, orderly and sanitary condition and free of insects, rodents, vermin and other pests, (d) keep any garbage, trash, rubbish or refuse in rat -proof containers within the interior of the Premises until removed and comply with Landlord's rules and regulations relating to the disposition of the garbage, (e) have all garbage, trash, rubbish and refuse removed not less frequently than twice per week, (f) keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the Premises, and (h) conduct its business in all respects in a dignified manner in accordance with high standards of operation consistent with the quality of operation of a first class mixed use building for Conference Center, office and retail use Section 9.2 Restrictions. In regard to use and occupancy of the Premises and Common Areas, Tenant will not (a) place or maintain any merchandise, trash, refuse or other articles in any vestibule or entry of the Premises, on the sidewalks or corridors adjacent thereto or elsewhere on the exterior of the Premises so as to obstruct any sidewalk, arcade or any other Common Area, (b) use or permit the use of any objectionable advertising medium such as, without limitation, loud speakers, phonographs, public address systems, sound amplifiers, reception of radio or television broadcasts within the Building, which is in any manner audible or visible outside of the Tenant's Space, (c) permit accumulations of garbage, trash, rubbish or other refuse within or without the Premises, (d) cause or permit objectionable odors to emanate or be dispelled from the Premises, (e) solicit or conduct business in the Common Areas, (f) distribute handbills or other advertising matter in the Common Areas, (g) permit the parking of delivery vehicles so as to interfere with the use of any drive aisle, sidewalk, parking area, arcade or other Common Area, (h) receive or ship articles of any kind except through service facilities provided by the Landlord, (1) conduct or permit to be conducted any auction, fire, going out of business, bankruptcy, or other similar type sale in or connected with the Premises, except in the normal course of conference center business such as fundraising events, or 0) place a load upon any floor which exceeds the load which the floor was designed to carry or is allowed to carry by law Tenant shall observe Landlord's rules and regulations relating to delivery hours to the Premises ' 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -17- ARTICLE 10 ASSIGNMENT AND SUCCESSION Section 10.1 Consent Required. Tenant shall not either voluntarily, or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, except the renting of space in the normal course of conference center business, without first obtaining the written consent of Landlord When Tenant requests Landlord's consent to an assignment or subletting, it shall notify Landlord in writing of the name and address of the proposed assignee or sublessee and the nature and character of the business of the proposed assignee or sublessee and shall provide financial statements for the proposed assignee or sublessee Landlord's consent to any proposed assignment or subletting shall not be unreasonably withheld, rop vided that it shall be reasonable for Landlord in exercising this right to evaluate (a) the financial condition of the proposed assignee or sublessee, (b) the management capabilities of the proposed assignee or sublessee, (c) the proposed use of the assignee or sublessee, and (d) the effect of the proposed business of the proposed assignee or sublessee upon other tenants in the Building Landlord may condition any consent upon the execution of one or more personal guarantees and/or upon an increase in the Minimum Rent payable hereunder in an amount equal to any subrental or other consideration received by Tenant as a result of the subletting or assignment which is in excess of the Minimum Rent provided for in Section 4 1 above Landlord may require payment by Tenant to cover its actual charges and costs incurred for each assignment it is requested to approve Section 10.2 General Conditions. In the event of any assignment or subletting of this Lease, Tenant shall remain primarily liable on its covenants hereunder unless released in writing by Landlord In the event of any assignment or sublease, the assignee or sublessee shall agree, in writing, to perform and be bound by all of the covenants of this Lease required to be performed by Tenant Section 10.3 Succession. Subject to any limitations on assignments set forth herein, all the terms and provisions of this Lease shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto Section 10.4 Right Of Recapture. Notwithstanding any provisions of this Article 11 to the contrary, after the Landlord receives a request from Tenant to consent to either an assignment or sublease of all or any portion of the Premises, Landlord shall have the option, to be exercised by written notice within thirty (30) days after the receipt of such request, to terminate this Lease and the Term hereof on not less than thirty (30) days and not more than ninety (90) days notice to the Tenant If the Landlord elects to terminate this Lease as aforesaid, the Tenant shall have the right, to be exercised by written notice to the Landlord within ten (10) days after receipt of such notice of 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -18- termination, to withdraw the request for consent to the proposed assignment or sublease, in which case the Tenant shall not proceed with such assignment or sublease, the notice of termination shall be null and void and this Lease shall continue in full force and effect in accordance with its terms ARTICLE 11 SURRENDER OF POSSESSION Section 11.1 Surrender. At the expiration or earlier termination of the Lease Term created hereunder, whether by lapse of time or otherwise, Tenant shall surrender the Premises to Landlord Section 11.2 Condition At Time Of Surrender. Furnishings, trade fixtures and equipment installed by Tenant shall be the property of Tenant and upon termination of this Lease, Tenant shall remove that property, provided, however, furnishings, fixtures and equipment installed so as to become fixtures upon the Premises or the Building shall be the property of Landlord and shall not be removed from the Premises Tenant shall repair or reimburse Landlord for the cost of repairing any damage to the Premises resulting from the installation or removal of such property, and Tenant shall deliver the Premises to Landlord in clean and good condition, except for reasonable wear and tear Section 11.3 Failure To Surrender If Tenant fails to surrender the Premises upon the termination of this Lease, Tenant shall indemnify and hold harmless Landlord from loss or liability resulting from such failure to surrender including, without limiting the generality of the foregoing, any claims made by any succeeding Tenant ARTICLE 12 HOLDING OVER Section 12.1 Holding Over. This Lease shall terminate without further notice at the expiration of the Lease Term Any holding over by Tenant without the express written consent of Landlord shall not constitute the renewal or extension of this Lease or give Tenant any rights in or to the Premises In the event of such a holding over by Tenant without the express written consent of Landlord, the monthly Rent payments to be paid by Tenant shall be subject to increase at the sole discretion of Landlord in an amount equal to one hundred ten percent (110 %) of the then applicable Rental rate, provided however no payment of such increased Rental by Tenant shall be deemed to extend or renew the Term of this Lease, and such Rental payments shall be fixed by Landlord only to establish the amount of liability for payment of Rent on the part of Tenant during such period of holding over In the event Landlord shall give its express written consent to Tenant to occupy the Premises beyond the expiration of the Term, that occupancy shall be construed to be a month -to -month tenancy upon all the same terms and 10 -3 13P M CITY OF BREMERTON, HARBORSIDE -19- conditions as set forth herein unless modified by Landlord in such written consent, provided that Rent charged during any period of holding over shall be as stated above ARTICLE 13 ENTRY BY LANDLORD Section 131 Entry By Landlord. Landlord reserves, and shall at all times have, the right to enter the Premises, after 24 hours' notice except in the case of an emergency, during business hours to inspect them, to submit the Premises to prospective purchasers and in the last year of the Lease, to prospective tenants, to post notices of non - responsibility, to repair the Premises and any portion of the Building that Landlord may deem necessary or desirable, without abatement of Rent, and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, always providing that the entrance to the Premises shall not be unreasonably blocked thereby, and further providing that the business of the Tenant shall not be interfered with unreasonably Tenant hereby waives any claim for damages or for any mjury or inconvenience to or interference with Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by exercise of Landlord of its rights under this Article For each of these purposes, Landlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Premises, excluding Tenant's vaults, safes and files, and Landlord shall have the right to use any and all means which Landlord may deem proper to open the doors in an emergency, in order to obtain entry to the Premises without liability to Tenant except for any failure to exercise due care for Tenant's property and any entry to the Premises obtained by Landlord by any of these means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof Tenant shall not change the locks or keys to the Premises without Landlord's prior written consent and shall furnish Landlord with details of any security system installed in or on the Premises ARTICLE 14 DEFAULT AND REMEDIES Section 14.1 Events Of Tenant's Default. The occurrence of any one or more of the following events shall constitute a material default in breach of this Lease by Tenant 14.1.1 Vacation or abandonment of the Premises, 14.1.2 Failure by Tenant to make any payment required as and when due, provided, that Landlord shall first be required to give Tenant written notice of default and Tenant shall have failed to cure such default within ten (10) days of Tenant's receipt or deemed receipt of Landlord's notice, and 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE 20- 14.1.3 Failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease, other than making any payment when due, where that failure shall continue for a period of thirty (30) days after Landlord gives written notice to Tenant of that failure, or if such failure is not reasonably capable of being cured within the thirty (30) day period, Tenant shall not be in default unless Tenant fails to promptly commence and diligently pursue the cure to completion Section 14.2 Remedies. In the event of any breach or default by Tenant under the terms or provisions of this Lease, Landlord, in addition to any other rights or remedies that it may have, shall have the immediate right of reentry Should Landlord elect to reenter or take possession of the Premises, it may either terminate this Lease, or from time to time, without terminating this Lease, re -let the Premises or any part thereof for the account and in the name of the Tenant or otherwise, for any term or terms and conditions as Landlord in its sole discretion may deem advisable, with the right to complete construction of or make alterations and repairs to the Premises and/or improvements installed by Tenant Tenant shall pay to Landlord in the event of re- letting, as soon as ascertained, the costs and expenses incurred by Landlord in the re- letting, completion of construction, or in making any alterations and repairs Rentals received by Landlord from any re- letting shall be applied first, to the payment of any indebtedness, other than Rent, due hereunder from Tenant to Landlord, second, to the payment of Rent due and unpaid hereunder and to any other payments required to be made by the Tenant hereunder, and the residue, if any, shall be held by Landlord in payment of future Rent or damages in the event of termination as the same may become due and payable hereunder, and the balance, if any, at the end of the Term of this Lease shall be paid to Tenant Should Rental received from time to time from the re- letting during any month be a lesser Rent than herein agreed to by Tenant, the Tenant shall pay the deficiency to Landlord The Tenant shall pay the deficiency each month as the amount thereof is ascertained by the Landlord Notwithstanding the foregoing, Landlord shall also have the right upon Tenant's default to terminate this Lease, accelerate all Minimum Rent payments due under this Lease for the remaining Term hereof, or if Tenant has been granted an option to extend and that option has been exercised, for the remainder of the Extension Term, and shall be entitled to recover from Tenant the total amount of unpaid Minimum Rent together with all past due Rent and any other payment due hereunder, less the amount which is established to be the reasonable rental value of the Premises for the remaining Term, after taking into consideration normal duration of vacancy periods, tenant improvement costs and Landlord's reasonably anticipated costs of re- letting the Premises Section 14.3 Re- letting. No re- letting of the Premises by Landlord permitted under this Lease shall be construed as an election on its part to terminate this Lease unless a notice of that intention is given to Tenant or unless the termination of this Lease be decreed by a court of competent jurisdiction Notwithstanding any re- letting without termination, Landlord may at any time thereafter elect to terminate this Lease for a previous breach, provided it has not been cured 10 -3 13P M CITY OF BREMERTON, HARBORSIDE -21- Should Landlord at any time terminate this Lease for any breach, in addition to any other remedy it may have, it may recover from Tenant all damages it may incur by reason of that breach Section 14.4 Default Of Landlord. Landlord shall not be in default unless Landlord fails to perform its obligations under this Lease within thirty (30) days after notice by Tenant, or if such failure is not reasonably capable of being cured within the thirty (30) day period, Landlord shall not be in default unless Landlord has failed to commence the cure and diligently pursue the cure to completion Section 14.5 Notice Of Default. Tenant shall notify Landlord of any default by Landlord not by its nature necessarily known to Landlord Section 14.6 Non - Waiver. Failure by Landlord to take action or declare a default as a result of any breach of any term, covenant or condition in this Lease shall not be deemed to be a waiver of that term, covenant, or condition, or of any subsequent breach of any other term, covenant or condition contained in this Lease The subsequent acceptance of Rent by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of that preceding breach at the time of acceptance of that Rent ARTICLE 15 LIMITATION OF LIABILITY Section 15.1 Limitation Of Landlord's Liability. Tenant understands, covenants and agrees that Landlord's liability under this Lease is expressly limited to Landlord's interest in the Property and the Building, and Tenant shall have no recourse hereunder against any officer, Director, Board Member or employee of Landlord (collectively "Landlord's Agents ") nor any other property of Landlord or any property of Landlord or Landlord's Agents ARTICLE 16 NOTICES Section 16.1 Notices Any notice required or desired to be given under this Lease shall be in writing with copies directed as indicated in this Lease and shall be personally served, sent via a commercially recognized overnight courier such as Federal Express, or given by mail Any mail given by facsimile or overnight courier shall be deemed given when received or delivery refused Any notice given by mail shall be deemed to have been given when seventy -two (72) hours have elapsed from the time when that notice was deposited in the United States mail, certified and postage prepaid, addressed to the party to be served at the last address given by the party to the other party under the provisions of this section At the date of the execution of this 10 3 -13P M CITY OF BREMERTON, HARBORSIDE -22- Lease the addresses of the Landlord and Tenant for notices are as specified in the Lease Summary ARTICLE 17 HAZARDOUS SUBSTANCES Section 17.1 Presence And Use Of Hazardous Substances. Tenant shall not, without Landlord's prior written consent, keep on or around the Premises, Common Areas or Building, for use, disposal, transportation, treatment, generation, storage or sale, any substances designated as, or containing components designated as hazardous, dangerous, toxic or harmful (collectively referred to as "Hazardous Substances "), and/or are subject to regulation by any federal, state or local law, regulation, statute or ordinance, except for products normally used in general business offices that constitute hazardous substances, provided that such products are used, stored and disposed of in accordance with applicable laws and manufacturer's and supplier's guidelines Section 17.2 Cleanup Costs, Default And Indemnification. Tenant shall be fully and completely liable to Landlord for any and all clean -up costs and any and all other charges, fees, penalties (civil and criminal) imposed by any governmental authority with respect to Tenant's use, disposal, transportation, treatment, generation, storage and/or sale of Hazardous Substances, in or about the Premises, Common Areas or Building, whether or not consented to by Landlord Tenant shall indemnify, defend and save Landlord harmless from any and all of the costs, fees, penalties, liabilities and charges incurred by, assessed against or imposed upon Landlord (as well as Landlord's attorneys' fees and costs) as a result of Tenant's use, disposal, transportation, treatment, generation, storage and/or sale of Hazardous Substances Landlord represents and warrants to Tenant that there are no Hazardous Substances in, on or under the Building or the Property Landlord further agrees to hold Tenant harmless from and against any and all damages, charges, cleanup costs, remedial actions, costs and expenses (including reasonable attorney fees) which may be imposed on, incurred or paid by, or assessed against Tenant, the Premises or the Property by reason of, or in connection with the existence of Hazardous Substances on or in the property or from the release from the Property except for those caused by Tenant and its employees and agents ARTICLE 18 SIGNAGE Section 18.1 Signage. Landlord shall include Conference Center identity signage in the Building elevators and Directory located in the first and third floor lobby directories Tenant may inscribe Tenant signage on the front door of the Tenant's Space or the wall adjacent to the Tenant's Space so long as such signage is professional, neat and attractive Tenant shall not place any additional exterior signage on the Building 10 -3 13P M CITY OF BREMERTON, HARBORSIDE -23- ARTICLE 19 NUSCELLANEOUS Section 19.1 Headings. The headings used in this Lease are for convenience only They shall not be construed to limit or to extend the meaning of any part of this Lease Section 19.2 Amendments. Any amendments or additions to this Lease shall be in writing by the parties hereto, and neither Tenant nor Landlord shall be bound by any verbal or implied agreements Section 19 3 Time Of The Essence. Time is of the essence of this Lease Section 19 4 No Recording. Tenant shall not record this Lease or any notice hereof without the prior written consent of Landlord Section 19.5 Entire Agreement. This Lease contains the entire agreement of the parties hereto with respect to the matters covered hereby, and no other agreement, statement or promise made by any party hereto, or to any employee, officer or agent of any party hereto, which is not contained herein, shall be binding or valid Section 19.6 Language. The words "Landlord" and "Tenant ", when used herein, shall be applicable to one (1) or more persons, as the case may be, and the singular shall include the plural and the neuter shall include the masculine and feminine, and if there be more than one (1), the obligations hereof shall be point and several The word "persons" whenever used shall include individuals, firms, associations and corporations and any other legal entity The language in all parts of this Lease shall in all cases be construed as a whole and in accordance with its fair meaning, and shall not be construed strictly for or against Landlord or Tenant Section 19.7 Invalidity. If any provision of this Lease shall be deemed to be invalid, void or illegal, it shall in no way affect, impair or invalidate any other provision hereof Section 19 8 Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent or other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, and the exact amount of those costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by the terms of any mortgage or deed of trust covering the Premises Therefore, in the event Tenant shall fail to pay any installment of Rent or other sum when due hereunder within ten (10) days after notice of default of payment is given by Landlord, Tenant shall pay to Landlord as Additional Rent a late charge equal to the lesser of $300 00 or five percent (5 %) of any amount due by Tenant which is not so timely paid A Thirty Dollar ($30 00) charge will be paid by the Tenant to the Landlord for each returned check In the event Landlord pays any sum or expense on behalf of Tenant which Tenant is obligated to pay hereunder, or in the event Landlord expends any other sum or incurs any expense, or Tenant fails to pay any sum due hereunder, 10 3 -13P M CITY OF BREMERTON, HARBORSIDE -24- Landlord shall be entitled to receive interest upon that sum at the rate of twelve percent (12 %) per annum until paid Section 19.9 Computation Of Time The word "day" means "calendar day" herein, and the computation of time shall include all Saturdays, Sundays and holidays and shall be based upon a 365 -day year for purposes of determining time periods specified herein Section 19.10 Applicable Law. This Lease shall be interpreted and construed under and pursuant to the laws of the State of Washington Section 19.11 Attorneys' Fees. In the event either party requires the services of any attorney in connection with enforcing the terms of this Lease or in the event suit is brought for the recovery of any Rent or other charges due under this Lease for the breach of any covenant or condition of this Lease, or for the restitution of the Premises to Landlord, and/or eviction of Tenant during the Term of this Lease or after the expiration of the Term of this Lease, the prevailing party will be entitled to a reasonable sum for attorneys' fees, witness fees and other court costs, both at trial and on appeal Section 19.12 Termination. Upon the termination of this Lease by expiration of time or otherwise, the rights of Tenant and all persons claiming under Tenant in and to the Premises shall cease except in situations when a court of competent jurisdiction determines that the Lease was wrongfully terminated Section 19.14 Name Of Building. In the event Landlord chooses to change the name of the Building, Tenant agrees that such change shall not affect in any way its obligations under this Lease, and that, except for the name change, all terms and conditions of this Lease shall remain in full force and effect Tenant agrees further that such name change shall not require a formal amendment to this Lease, but shall be effective upon Tenant's receipt of written notification from Landlord of said change Section 19.15 Rules And Regulations. Tenant agrees to abide by and adhere to any rules and regulations for the Building, and all amendments thereto, which may be promulgated from time to time by Landlord which do not materially change the provisions of this Lease The rules and regulations currently in effect upon the date of execution of this Lease are set forth as Exhibit E attached hereto Section 19.16 Survival. Those provisions of this Lease which, in order to be given full effect, require performance by either Landlord or Tenant following the termination of this Lease shall survive the Termination Date 10 -3 13P M CITY OF BREMERTON, HARBORSIDE -25- IN WITNESS WHEREOF, this Lease Agreement is executed on the day and year first written above LANDLORD KITSAP TRANSIT By Name John Clauson Title Executive Director TENANT CITY OF BRENIERTON By Name Title STATE OF WASHINGTON ) ss COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that the person appearing before me and making this acknowledgment is the person whose true signature appears on this document On this day of , 2013 before me personally appeared JOHN CLAUSON, to me known to be the Executive Director of Kitsap Transit, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument WITNESS my hand and official seal hereto affixed the day and year first above written Notary Public in and for the State of Washington, residing at My Commission Expires [Type or Print Notary Name] 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -26- STATE OF WASHINGTON ) ) ss COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that the person appearing before me and making this acknowledgment is the person whose true signature appears on this document On this day of , 2013, before me personally appeared PATTY LENT, to me known to be the Mayor of City of Bremerton, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said municipal, for the uses and purposes therein mentioned, and on oath stated that he /she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation WITNESS my hand and official seal hereto affixed the day and year first above written Notary Public in and for the State of Washington, residing at My Commission Expires [Type or Print Notary Name] 10 3 -13P M CITY OF BREMERTON, HARBORSIDE -27- EXHIBIT A LEGAL DESCRIPTION Intentionally Deleted 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -1- EXHIBIT B THIRD FLOOR SITE PLAN C�4 Q Y Meeting m Meeting 5toFage 2 m SS Meeting i Meeting Meeting 3x stir 4 i, fs r 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -1- EXHIBIT C Premises Acceptance Acknowledgment Landlord and Tenant agree as follows 1 Landlord has delivered the Premises in conformance with the Lease and Tenant accepts the Premises as of the day of 1 2013 2 The Rentable Square Feet of the premises is 3 The amount of initial Minimum Rent is $ 4 The Rentable Square Feet of the Building is 5 The initial amount of Tenant's share of Operating Costs is $ Landlord's Initials Tenant's Initials 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -2- EXHIBIT D Operating Costs - Additional Rent 1 Operating Costs Defined. The term "Operating Costs" as used herein shall mean all costs, expenses and other charges incurred by Landlord in connection with the operation and maintenance of the Building a first class, mixed use retail/office building complex The term "Operating Costs" shall exclude the specific "Exclusions" set forth in Section 2 Subject to the Exclusions, Operating costs shall include, but not be limited to 1 1 All supplies and materials used in the operation and maintenance of the Building 12 Unless metered and paid separately by the Tenant, the proportionate cost of water and power, air conditioning and ventilating the Building, the Common Areas and the Premises 13 Cost of maintenance, depreciation and replacement of machinery, tools and equipment (if owned by Landlord) and for rental paid for such machinery, tools and equipment (if rented) used in connection with the operation or maintenance of the Building 14 All premiums and deductibles on policies of compensation, public liability, property damage, automobile, garage keepers and any other policies of insurance maintained by Landlord with respect to the Building and abutting Common Areas or any insurable interest therein 15 Cost of janitorial services for the Common Areas and costs associated with the trash and refuse removal and recycling services, receptacles and containers provided by Landlord for the tenants of the Building 16 Cost of repairs, maintenance and upkeep of the Building and Common Areas, including the electrical, plumbing and mechanical systems, landscaping areas, exterior power washing, exterior window washing, roof and canopy cleaning, repairs and maintenance, refurbishing and painting, and floor and wall covering replacement 17 Any capital improvements made or installed (1) for purposes of saving labor or otherwise reducing applicable operating costs amortized over the useful life of such improvements, as determined by Landlord in accordance with generally accepted accounting 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -3- principles and practices in effect at the time of acquisition of the capital item, and (ii) for the purpose of complying with governmental rules or regulations adopted after the building was first constructed Any capital improvement expenditures shall be amortized in accordance with generally accepted accounting principles and included as an operating expense only to the extent the amortized portion applies to the year in question 18 Elevator inspection, maintenance and repairs 19 All taxes due any unit of government 110 Cost of all accounting, legal and other professional fees incurred in connection with the operation of the Building 1 11 Cost of providing security services and pest control for the Building and Common Areas as deemed necessary by Landlord 1 12 A property management fee not to exceed 5% of the gross rents payable by all Tenants of the Building (including imputed rents attributable to Landlord's occupancy of the Second Floor) 1 13 Cost of replacing non - specialty lamps, blubs, starters and ballasts used in the Building Common Areas 114 Cost of cleaning, maintaining, repairing and patching abutting sidewalks 2. Exclusions. Operating Costs under this Lease shall specifically exclude the following 21 The following costs and expenses specific to the first floor retail tenant space a Cost of water, power, heating, lighting, air conditioning and ventilation of such retail space, b Cost of cleaning, repairing, maintaining or replacing storefront offices, windows and doors, c Cost of repairing, maintaining, replacing or operating plumbing, electrical, mechanical, fire suppression and HVAC systems 22 Any costs or expenses attributable to the Bremerton Harborside Conference Center 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -4- 23 The following Building costs and expenses a Expenses for which the Landlord is reimbursed or indemnified (either by an insurer, condemnor, tenant or otherwise), b Expenses incurred in leasing or procuring tenants (including, without limitation, lease commissions, legal expenses and expenses of renovating space for tenants), c Legal expenses arising out of disputes with tenants or the enforcement of the provisions of any lease of space in the Building, interest or amortization payments on any mortgage or mortgages and rental under any ground or underlying lease or leases, d Cost of any work or service performed for or facilities furnished to a tenant at the tenant's cost, e Costs of mayor capital improvements for mayor repairs to the Building shell and remodeling or altering the Building and common Areas as expressly provided elsewhere either in this Exhibit or elsewhere in the Lease f Any costs or expenses attributable to the improvement, alteration or repair of the interior of any other tenant spaces, and g Landlord's own overhead, loan payments, amortization, depreciation on the Building or equipment therein and landlord's tenant improvements for its occupancy of the Second Floor of the Building h Landlord's cost of maintaining Kitsap Transit parking so long as conference center employees and guests utilize other parking not owned or maintained by Kitsap Transit 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE 5- EXHIBIT E RULES AND REGULATIONS 1 The sidewalks, halls, passages, elevators, stairways, exits and entrances of the Building shall not be obstructed by Tenant or used by it for any purpose other than for ingress and egress from the Premises Excluding the first floor passageway and sidewalks, the halls, passages, exits, entrances, elevators, retail space, balconies and stairways are not for the use of the general public, and Landlord shall in all cases retain the right to control and prevent access to those areas by all persons whose presence in the judgment of Landlord would be prejudicial to the safety, character, reputation and interests of the Building and its tenants, provided that nothing in this Lease shall be construed to prevent access to persons with whom Tenant normally deals in the ordinary course of its business, unless those persons are engaged in illegal activities Tenant shall not go upon the roof of the Building, except in areas that Landlord may designate as "Common Areas" from time to time 2 The Premises shall not be used for lodging or sleeping 3 Tenant shall not alter any lock or install a new or additional lock or any bolt on any access door of the Premises without furnishing Landlord with a key for any lock and obtaining Landlord's prior permission Tenant, upon the termination of its tenancy, shall deliver to Landlord all keys and/or security cards to doors in the Building and the Premises that shall have been furnished to Tenant and in the event of loss of any keys and/or security cards so furnished, shall pay Landlord for the lost keys and/or security cards and changing of locks as a result of such loss 4 The persons contracted by Tenant to move equipment or other items in or out of the Building must be acceptable to Landlord Landlord shall have the right to prescribe the weight, size and position of all equipment, materials, supplies, furniture or other property brought into the Building No safes or other objects larger or heavier than the freight elevator of the Building is limited to carry shall be brought into or installed on the Premises without Landlord's prior written consent Heavy objects shall, if considered necessary by Landlord, stand on wood strips of thickness as is necessary to properly distribute the weight of those objects Landlord will not be responsible for loss of or damage to any property from any cause, and all damage done to the Building by moving or maintaining Tenant's property shall be repaired at the expense of Tenant The moving of heavy objects shall occur only between those hours as may be designated by and only upon written notice to Landlord and the persons employed to move heavy objects in or out of the Building must be acceptable to Landlord 5 Tenant shall not use or keep in the Premises or the Building any kerosene, gasoline or flammable or combustible fluid or materials or use any method of heating or air conditioning other than that supplied by Landlord Tenant shall not sweep or throw or permit to be swept or thrown from the Premises any debris or other substance 10 3 -13P M CITY OF BREMERTON, HARBORSIDE 6- into any of the corridors, halls or lobbies or out of the doors or windows or into the stairways of the Building and Tenant shall not use, keep or permit to be used or kept any foul or noxious gas or substance in the Premises Tenant shall not use, keep or permit or suffer the Premises to be occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Building by reason of noise, odors (excluding bread baking) and/or vibrations, or interfere in any way with other tenants or those having business in the Building 6 Tenant shall see that the doors of the Premises are closed and securely locked when Tenant's employees leave the Premises, after hours Tenant shall lock the exterior Building Doors and elevators, if Tenant is present on the Premises on weekends, before 7 30 a in or after 5 30 p m on weekends 7 The restrooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed, no foreign substance of any kind whatsoever shall be deposited in any of them, and any damage resulting to them from Tenant's misuse shall be paid for by Tenant 8 Except with the prior written consent of Landlord, Tenant shall not sell, or permit the sale from the Premises of newspapers, magazines, periodicals, theatre tickets or any other goods, merchandise or service, nor shall the Premises be used for manufacturing of any kind, or for any business or activity other than that specifically provided for in Tenant's Lease Tenant shall not install any radio or television antenna, loudspeaker or other device on the roof or exterior walls of the Building, unless approved by Landlord 10 Tenant shall not use in any space, or in the Common Areas of the Building, any hand trucks except those equipped with rubber tires and side guards or other material handling equipment as Landlord may approve No bicycles, vehicles, motorcycles or animals of any kind shall be brought by Tenant into the Building or kept in or about the Premises unless approved by the Landlord 11 No sign, advertisement or notice visible from the exterior of the Premises shall be inscribed, painted or affixed by Tenant on any part of the Building or the Premises except as provided in Article 21 If Landlord shall have permitted an exception at anytime, whether before or after the execution of this Lease, that consent shall in no way operate as a waiver or release of any of the provisions of this Rule 11 or of this Lease, and shall be deemed to relate only to the particular sign, advertisement or notice so permitted by Landlord 12 Except as shown in the design plan approved by Landlord, the sashes, sash doors, windows, glass relights, and any lights or skylights that reflect or admit light into the halls or other places of the Building shall not be covered or obstructed and, there shall be no hanging plants or other similar objects in the immediate vicinity of the windows or placed upon the window sills or hung from the window heads 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -7- 13 No tenant shall lay linoleum or other similar floor covering so that it is affixed to the floor of the Premises in any manner except by a paste, or other material which may easily be removed with water, the use of cement or other similar adhesive materials being expressly prohibited The method of affixing any linoleum or other similar floor covering to the floor, as well as the method of affixing carpets or rugs to the Premises, shall be subject to approval by Landlord The expense of repairing any damage resulting from a violation of this Rule 14 shall be borne by the Tenant by whom, or by whose agents, clerks, employees or visitors, the damage shall have been caused Subway shall be entitled to install its standard floor tiles 14 All loading, unloading, and delivery of merchandise, supplies, materials and furniture to the Premises shall be made during reasonable hours and in a manner not causing disruption to other Tenants and at and through any service location, elevator and/or delivery areas designated by Landlord 15 Canvassing, soliciting, peddling or distribution of handbills or any other written material in the Building is prohibited and Tenant shall cooperate to prevent these activities 16 Tenant shall not permit the use or the operation of any coin operated machines on the Premises, including, without limitation, vending machines, video games, pinball machines, or pay telephones without the prior written consent of Landlord 17 Landlord may direct the use of all pest extermination throughout the Building and/or Premises at intervals as Landlord may require 18 As to telephone, Cable T V or internet connection lines desired by Tenant, Landlord will direct service technicians as to where and how the wires are to be introduced No boring or cutting for wires or otherwise shall be made without directions from Landlord 19 Tenant shall immediately, upon request from Landlord (which request need not be in writing), reduce its lighting in the Premises for temporary periods designated by Landlord, when required in Landlord's judgment to prevent overloads of mechanical or electrical systems of the Building 20 Landlord reserves the right to select the name of the Building and to change the name as it may deem appropriate from time to time, and Tenant shall not refer to the Building by any name other than (a) the names as selected by Landlord (as that name may be changed from time to time), or (b) the postal address, approved by the United States Post Office Tenant shall not use the name of the Building in any respect other than as an address of its operation in the Building without the prior written consent of Landlord 21 The trash dumpster in the Parking Garage designated for Building Tenants is limited to trash generated on the Premises through Tenant's normal conduct of its business and shall not be used for personal use by Tenant, Tenant's employees or the invitees of Tenant 10 3 -13P M CITY OF BREMERTON, HARBORSIDE -8- 22 Landlord may waive any one or more of the Rules and Regulations for the benefit of any particular tenant or tenants, but no waiver by Landlord shall be construed as a waiver of the Rules and Regulations in favor of any other tenant or tenants, nor prevent Landlord from thereafter enforcing any Rules and Regulations against any or all of the tenants in the Building 23 Wherever the word "Tenant" occurs in these Rules and Regulations, it is understood and agreed that it shall mean Tenant's assigns, subtenants, associates, agents, clerks, employees and visitors Wherever the word "Landlord" occurs in these Rules and Regulations, it is understood and agreed that it shall mean Landlord's assigns, agents, clerks, employees and visitors 24 During mayor community events and festivals (Blackberry Festival, Art Walk) Landlord reserves the right to cooperate with the event sponsor to allow use of the Building Common Areas and restrict access to the Building, Parking Garage and Common Areas 25 These Rules and Regulations are in addition to, and shall not be construed in any way to modify, alter or amend, in whole or part, the terms, covenants, agreements and conditions of any Lease of Premises in the Building 26 Landlord reserves the right to make other and reasonable rules and regulations as in its judgment may from time to time be needed for the safety, care and cleanliness of the Building, and for the preservation of good order therein 10 3 -13P M CITY OF BREMERTON, HARBORSIDE 9- EXHIBIT F LANDLORD'S IMPROVEMENT EXPENDITURES Landlord has Budgeted $200,000 00 (the "Budgeted Amount ") for Building Improvements in accordance with and subject to the following A Landlord agrees to make certain Elevator Improvements to improve the speed and interior of the elevators serving the Building (including the underground parking garage) It is anticipated these costs will not exceed approximately $118,445 00 B Landlord agrees to contribute the difference between the Budgeted Amount and the actual cost of the Elevator Improvements towards the cost of the following improvements associated with Tenant's Improvements in the following order of priority 1 Structural modifications for floor loads and HVAC 2 HVAC capacity improvements and associated electrical work to support the HVAC capacity improvements 3 Fireproofing for HVAC and structural modifications including required roof repairs 4 Additional minor building system modifications 10 -3 -13P M CITY OF BREMERTON, HARBORSIDE -10- AGENDA BILL 010 CITY OF BREMERTON CITY COUNCIL ■■ eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseeeeeeeeeeeee SUBJECT Contract Award to Jones & Study Session Date October 9, 2013 Roberts, Inc for Construction of the Kitsap COUNCIL MEETING Date October 16, 2013 Conference Center Expansion Project Department PW &U Presenter Martin Phone X 5758 SUMMARY Sealed bids were solicited for the Kitsap Conference Center expansion project September 9, 2013 Bids were opened at 3 00 p m Monday, September 30, 2013 14 bids were received The low bidder was Jones & Roberts, Inc out of Olympia, with a bid amount of $746,900 (plus sales tax), inclusive of all alternates Staff verified that Jones & Roberts, Inc met all requirements of the bid documents and recommend the bid be awarded to Jones & Roberts ATTACHMENTS 1 Bid Summary 2 Project Financing Summary 3 Proposed Contract FISCAL IMPACTS (Include Budgeted Amount) See attached project financing summary sheet STUDY SESSION AGENDA ❑ No Discussion ❑x Full Presentation STUDY SESSION ACTION ❑ Consent Agenda ❑x General Business ❑ Public Hearing RECOMMENDED MOTION Move to approve award and enter into a contract with Jones & Roberts, Inc in the amount of $746,900 (plus sales tax) to construct the Kitsap Conference Center Expansion Project, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/12 CITY OF BREMERTON BID TABULATION BID TITLE Kitsap Conference Center Expansion OPENED BY 11 kr.,6A' DATE OPENED 9/30/13 TIME OPENED 3 OOPM RECORDED BY Shannon Conn NAME OF BIDDER BID ADD SUB FIN BASE BID ALT 01 ALT 02 ALT 03 BOND ACK LIST STMT (w /out Sales Tax) (w /out Sales Tax) (w /out Sales Tax) (w /out Sales Tax) s s 4 G�+D J Es yps A.'1 lq ax a) It 53 ��- �, s 4 6 0, tj:� Ves z j 3 V�g 11 VLO ,3, 5 , 4 01) PW S S i t 3S ��O �� �1.�� / 7M AW y joS 1 2 3 S �S 7 5/ 838- 1'/a 7& �' / f37 4 c ` ► Z 3 S ,ES 7yie f//7 0 033 S w4 J7)i�T SUMMARY BAS BID COMMENTS A PARENT LOW DDER (*fsf 4196 � i t�L,1L�, w ENGINEER ESTIMATE (W /OUT SALES TAX) 61 000 SECOND LOW BIDDER RD LOW BID ER Aq ��� �i CITY OF BREMERTON BID TABULATION BID TITLE Kitsap Conference Center Expansion OPENED BY Cl. _ I DATE OPENED 9130/13 TIME OPENED RECORDED BY 3 00PM Shannon Conn NAME OF BIDDER BID ADD SUB FIN BASE BID ALT 01 ALT 02 BOND ACK LIST STMT (w /out Sales Tax) (W/but Sales Tax ALT 03 ( ) (w /out Sales Tax) (w /out Sales Tax) 1� x.t dCav t & as I I r5 b i z,� gym— �3 svw� - L4 C�a�ng► -. �,s 1 1 1 -1 3 4 �ipv 66 � Ra K 4S ,� e- SUMMARY BASE BID COMMENTS APPARENT LOW BIDDER E ER ESTIMATE (W /OUT SALES TAX) $ 610 000 SECOND LOW BIDDER THIRD LOW BIDDER �ac�v a� of vZ DRAFTAIA" Document A201 TM - 2007 General ConcU tions of the Contract for Construction for the following PROJECT (Name and location or address) «City of Bremerton Krtsap Conference Center Expansion» «Bremerton WA» AD ITIONS AND DELETIONS THE OWNER ThE author of this document (Name legal status and address) haE added information ne ded for its completion <<City of Bremerton»« » The author may also have «100 Oyster Bay Avenue N re ised the text of the Bremerton WA 98312» original AI s andard form An Addition5 and Deletions Re ort that no es added THE ARCHITECT information as well as (Name, legal status and address) re isions t3 t e standard «Rice Fergus Miller, Inc »« » fo ex a al;a e the author and should be «275 5th Street, Suite 100 Bremerton WA 98337» This document has Impo legal consequence TABLE OF ARTICLES Consultatio h an attorn s , en ur ged with 1 GENERAL PROVISIONS ect t s om let> on or fl cation 2 OWNER 3 CONTRACTOR 4 ARCHITECT 5 SUBCONTRACTORS 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7 CHANGES IN THE WORK 8 TIME 9 PAYMENTS AND COMPLETION 10 PROTECTION OF PERSONS AND PROPERTY 11 INSURANCE AND BONDS 12 UNCOVERING AND CORRECTION OF WORK 13 MISCELLANEOUS PROVISIONS ELECTRONIC COPYING of any 14 TERMINATION OR SUSPENSION OF THE CONTRACT portion of this AIA' Document to another electronic file is 15 CLAIMS AND DISPUTES prohibited and constitutes a violation of copyright laws as set forth in the footer of this document AIA Document A201° - 2007 Copyright 0 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA` Document 3s protected by U 3 Copyright Law and International 1 Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) INDEX Architect's Additional Services and Expenses (Topics and numbers in bold are section headings) 2 4, 113 1 1, 12 2 1, 13 5 2, 13 5 3, 14 2 4 Architect's Administration of the Contract 3 1 3,42,374, 152,941,95 Acceptance of Nonconforming Work Architect's Approvals 966,993,123 2 4, 3 13, 3 5, 3 10 2, 4 2 7 Acceptance of Work Architect's Authority to Red ct ork 9 6 6, 9 8 2, 9 9 3, 9 10 1, 9 10 3, 123 35,426, 1212, 1221 Access to Work Architect's Copyright 3 16, 6 2 1, 12 1 1 1 7, 1 5 Accident Prevention Architect's Decisions 10 374,426,427,4211,4 1 ,4213,4214,63, Acts and Omissions 737,739,813,831 9 1,95,984,991, 3 2, 3 3 2, 3 12 8, 3 18, 4 2 3, 8 3 1, 9 5 1, 10 2 5, 1352,152,153 10 2 8, 13 4 2, 13 7, 14 1, 15 2 Architect's Inspections Addenda 3 7 4, 4 2 2, 4 2 9, 9 4 2, 9 8 ,992,9101,135 1 1 1,3 11 Architect's Instructions Additional Costs, Claims for 3 2 4, 3 3 1, 4 2 6, 4 2 7, 13 5 2 3 7 4, 3 7 5, 6 1 1, 7 3 7 5, 10 3, 15 14 Architect's Interpretations Additional Inspections and Testing 42 11,42 12 9 4 2, 9 8 3, 12 2 1, 13 5 Architect's Project Repress tati e Additional Insured 42 10 11 14 Architect's Relationship wi Con ac o Additional Time, Claims for 1 12, 1 5, 3 13, 3 2 2, 3 2 3, 3 2 4, 3 3 1, 3 4 2, 3 5, 3 2 4, 3 7 4, 3 7 5, 3 10 2, 8 3 2, 15 15 374, 375 ,392,393,310,311,312,316,318, Administration of the Contract 4 1 2, 4 13, 4 2, 5 2, 6 2 2, 7, 8 3 1, 9 2, 9 3, 9 4 , 3 1 3, 4 2, 9 4, 9 5 97,98,99, 1026, 103, 11 37, 12, 134 5, Advertisement or Invitation to Bid 152 1 1 1 Architect's Relationship wi ubcon ors Aesthetic Effect 1 1 2, 4 2 3, 4 2 4, 4 2 6, 9 6 3, 11 3 7 4213 Architect's Representations Allowances 9 4 2, 9 5 1, 9 10 1 38,738 Architect's Site Visits All-nsk Insurance 3 7 4, 4 2 2, 4 2 9, 9 4 2, 9 5 1,992,9101, 135 113 1, 11 3 1 1 Asbestos Applications for Payment 103 1 4 2 5, 7 3 9, 9 2, 9 3, 9 4, 9 5 1, 9 6 3, 9 7, 9 10, Attorneys' Fees 11 13 3 181,9102, 1033 Approvals Award of Separate Contract 2 1 1, 2 2 2, 2 4, 3 13, 3 10 2, 3 12 8, 3 12 9, 3 1210, 611,612 4 2 7, 9 3 2, 13 5 1 Award of Subcontracts an O her Cont act for Arbitration Portions of the Work 8 3 1, 113 10, 13 1, 15 3 2, 15 4 52 ARCHITECT Basic Definitions 4 11 Architect, Definition of Bidding Requirements 411 111,521,1141 Architect, Extent of Authority Binding Dispute Resolution 2 4, 3 12 7, 4 1, 4 2, 5 2, 6 3, 7 12, 7 3 7, 7 4, 9 2, 97,1139,11310,131,15 512"6 ,1531, 9 3 1, 9 4, 9 5, 9 6 3, 9 8, 9 10 1, 9 10 3, 12 1, 12 2 1, 1532,1541 13 5 1, 13 5 2, 14 2 2, 14 2 4, 15 13, 15 2 1 Boiler and Machinery Ins ra ce Architect, Limitations of Authority and 1132 Responsibility Bonds, Lien 2 1 1, 3 12 4, 3 12 8, 3 12 10, 4 12, 4 2 1, 4 2 2, 7 3 7 4, 9 10 2, 9 10 3 423,426,427,42 10, 4 2 12,42 13,52 1, 7 4, Bonds, Performance, and I layment 942,953,964, 1513, 152 7 3 7 4, 9 6 7, 9 10 3, 1139 AIA Document A201 - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International Treatiee Unauthorized reproduction or distribution of this ALA` Document or any portion of it may result in severe civil and criminal 2 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) Building Permit Completion, Substantial 371 4 2 9, 8 1 1, 8 13, 8 2 3, 9 4 2, 9 8, 9 9 1, 9 10 3, Capitalization 122, 137 13 Compliance with Laws Certificate of Substantial Completion 16, 3 2 3, 3 6, 3 7, 3 12 10, 3 13, 4 1 1, 9 6 4, 10 2 2, 983,984,985 11 1, 113, 13 1, 13 4, 13 5 52,136,1411, Certificates for Payment 14 2 13, 15 2 8, 15 4 2, 15 1 3 4 2 1, 4 2 5, 4 2 9, 9 3 3, 9 4, 9 5, 9 6 1, 9 6 6, 9 7, Concealed or Unknown Cor diti ns 9 101,9103, 141 13, 1424, 15 13 374,428,83 1, 103 Certificates of Inspection, Testing or Approval Conditions of the Contract 1354 111,611,614 Certificates of Insurance Consent, Written 9102, 11 13 3 4 2, 3 7 4, 3 12 8, 3 14 2, A 1 ,932,985,991, Change Orders 9 10 2, 9 10 3, 113 1, 13 2, 13 2, 15 4 4 2 1 1 1, 2 4, 3 4 2, 3 7 4, 3 8 2 3, 3 11, 3 12 8,4 2 8, Consolidation or Joinder 523,7 1 2,713,72,732,736,739,73 10, 1544 8 3 1, 9 3 1 1, 9 10 3, 10 3 2, 113 12, 11 3 4, 113 9, CONSTRUCTION BYO R OR B 12 1 2, 15 13 SEPARATE CONTRACT Change Orders, Definition of 1 1 4, 6 721 Construction Change Dire h, Definition CHANGES IN THE WORK 731 ' 2 2 1, 3 11, 4 2 8, 7, 7 2 1, 7 3 1, 7 4, 8 3 1, 9 3 1 1, Construction Change Dire ti 1139 111, 342, 3 12 8, 428,7U 3 3 Claims, Definition of 93 11 1511 Construction Schedules, Contractor's CLAIMS AND DISPUTES 3 10, 3 12 1, 3 12 2, 6 13, 15 15 2 3 2 4, 6 1 1, 6 3, 7 3 9, 9 3 3, 9 10 4, 10 3 3, 15, 15 4 Contingent Assignment of Subcontract Claims and Timely Assertion of Claims 54,14222 1541 Continuing Contract Per" ance Claims for Additional Cost 1513 3 2 4, 3 7 4, 6 1 1, 7 3 9, 10 3 2, 151 4 Contract, Definition of Claims for Additional Time 1 12 3 2 4, 3 7 4, 6 1 1, 8 3 2, 10 3 2, 151 5 CONTRACT, TERMINATION OR Concealed or Unknown Conditions, Claims for SUSPENSION OF THE 374 5411,1139,14 Claims for Damages Contract Administration 3 2 4,3 18, 6 1 1, 8 3 3, 9 5 1,9 6 7,10 3 3, 11 1 1, 313,4,94,95 113 5, 113 7, 14 13, 14 2 4,15 16 Contract Award and Executn tng Claims Subject to Arbitration to 153 1,154 1 371,310,52,61,1113, Cleaning Up Contract Documents, Copie of 315,63 152,225,53 Commencement of the Work, Conditions Relating to Contract Documents, Defi 2 2 1, 3 2 2, 3 4 1, 3 7 1, 3 10 1, 3 12 6, 5 2 1, 5 2 3, 111 6 2 2,8 12, 8 2 2,8 3 1, 11 1, 113 1, 113 6, 114 1, Contract Sum 1514 3 7 4, 3 8, 5 2 3, 7 2, 7 3, 7 4, 9 1, 9 4 2, 9 5 14, Commencement of the Work, Definition of 9 6 7, 9 7, 10 3 2, 113 1, 14 2 4, 14 3 5- , 812 1525 Communications Facilitating Contract Contract Sum, Definition of Administration 91 39 1,424 Contract Time Completion, Conditions Relating to 3 7 4, 3 7 5, 3 10 2, 5 2 3, 7 1, 73 1,7 3 5, 7 4, 341 ,311,315,422,429,82,942,98,991, 811,821,831,951,97 1032,12 11,1432, 910,122,137,1412 15 15 1,1525 COMPLETION, PAYMENTS AND Contract Time, Definition of 9 811 AIA Document A201" - 2007 Copyright 9 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This ALA Document as protected by U 8 Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal 3 penalties and wall be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) CONTRACTOR Costs 3 24 ,324,373,382,3152,542,611,623, Contractor, Definition of 7 3 3 3, 7 3 7, 7 3 8, 7 3 9, 9 10 2, 10 3 2, 10 3 6, 31,612 113,1212,1221,1224,135,14 Contractor's Construction Schedules Cutting and Patching 3 10, 3 12 1, 3 12 2, 6 13, 15 15 2 314,625 Contractor's Employees Damage to Construction of wi er or Separate 3 3 2, 3 4 3, 3 8 1, 3 9, 3 18 2, 4 2 3, 4 2 6, 10 2, 10 3, Contractors 11 1 1, 113 7, 14 1, 14 2 1 1 3142,624,10212,102 ,1 4,1111,113, Contractor's Liability Insurance 1224 111 Damage to the Work Contractor's Relationslup with Separate Contractors 3 14 2, 9 9 1, 10 2 12, 10 2 5, 1 4, 113 1, 12 2 4 and Owner's Forces Damages, Claims for 3125,3142,424,6,1137,1212,1224 3 2 4,3 18, 6 1 1, 8 3 3,9 5 1,9 67,1033,1111, Contractor's Relationship with Subcontractors 113 5, 113 7, 14 13, 14 2 16 12 2, 3 3 2, 3 18 1, 3 18 2, 5, 9 6 2, 9 6 7, 9 10 2, Damages for Delay 11312,1137,1138 6 1 1, 8 3 3, 9 5 1 6, 9 7, 10 3 2 Contractor's Relationship with the Architect Date of Commencement ol the Work, D.-fin D.-fin tion of 112 ,15,313,322,323,324,331,342,35, 812 3 7 4, 3 10, 3 11, 3 12, 3 16, 3 18, 4 13, 4 2, 5 2, Date of Substantial Comp do ri, Defimt n f 6 2 2, 7, 8 3 1, 9 2, 9 3, 9 4, 9 5, 9 7, 9 8, 9 9, 10 2 6, 813 10 3, 113 7, 12, 13 5, 15 12, 15 2 1 Day, Defimtion of Contractor's Representations 814 3 2 1, 3 2 2, 3 5, 3 12 6, 6 2 2, 8 2 1, 9 3 3, 9 8 2 Decisions of the Architect Contractor's Responsibility for Those Performing the 3 7 4, 4 2 6, 4 2 7, 4 2 11, 4 <6,9 2, 6 3, Work 737 ,739,813,831,924,99 , 332,318,53,613,62,951,1028 1352,1422,1424,151, Contractor's Review of Contract Documents Decisions to Withhold Cer 32 941,95,97, 141 1 3 Contractor's Right to Stop the Work Defective or Nonconforrmn anc , 9 7 Rejection and Correction of Contractor's Right to Terminate the Contract 2 3, 2 4, 3 5,4 2 6, 6 2 5, 9 9 , 141, 151 6 993,9 104, 122 1 Contractor's Submittals Definitions 310, 311,3124,427,521,523,92,93,982, 11 ,211,311,35,3121,,,411, 983,991,9102,9103,1113,1142 1511,51,612,721,731,81 1 Contractor's Superintendent Delays and Extensions of Ti e 39,1026 3 2, 3 7 4, 5 2 3, 7 2 1, 7 3 1 74 1, 7 Contractor's Supervision and Construction 10 3 2, 10 4, 14 3 2, 15 15, 5 5 Procedures Disputes 122 ,33,34,31210,422,427,613 624, 63,739,151,152 7 13, 7 3 5, 7 3 7, 8 2, 10, 12, 14, 15 13 Documents and Samples a th Site Contractual Liability Insurance 311 11 1 1 8, 11 2 Drawings, Definition of Coordination and Correlation 115 12, 3 2 1, 3 3 1, 3 10, 3 12 6, 6 13, 6 2 1 Drawings and Specifications, Use and Ownership of Copies Furnished of Drawings and Specifications 3 11 15,225,3 11 Effective Date of Insurance Copyrights 822,11 1 2 15,317 Emergencies Correction of Work 10 4, 14 1 12, 15 14 2 3, 2 4, 3 7 3, 9 4 2, 9 8 2 9 8 3, 9 9 1, 12 12, 12 2 Employees, Contractor's Correlation and Intent of the Contract Documents 3 3 2, 3 4 3, 3 8 1, 3 9, 3 18 , 4 2 3, 4 2 6, 10 2, 12 10 3 3, 11 1 1, 113 7, 14 1, 4 11 Cost, Definition of 737 AIA Document A201 - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International 4 Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) Equipment, Labor, Materials or Instruments of Service, Definition of 1 13, 1 16, 3 4, 3 5, 3 8 2, 3 8 3, 3 12, 3 13, 3 15 1, 117 4 2 6, 4 2 7, 5 2 1, 6 2 1, 7 3 7, 9 3 2, 9 3 3, 9 5 13, Insurance 9 10 2, 1021, 1024, 1421 1, 14212 3 181,61 1, 7 3 7, 9 3 2, 9 8 4, 9 9 1, 9 10 2, 11 Execution and Progress of the Work Insurance, Boiler and Machinery 113 ,121,122,223,225,31,331,341,35, 1132 3 7 1, 3 10 1, 3 12, 3 14,4 2, 6 2 2, 7 13, 7 3 5, 8 2, Insurance, Contractor's Li abi ity 9 5 1, 9 9 1, 10 2, 10 3, 12 2, 14 2, 14 3 1, 15 13 111 Extensions of Time Insurance, Effective Date o 3 2 4, 3 7 4, 5 2 3, 7 2 1, 7 3, 7 4, 9 5 1, 9 7, 10 3 2, 822,1112 10 4, 14 3, 15 1 5, 15 2 5 Insurance, Loss of Use Failure of Payment 113 3 9 5 13, 9 7, 9 10 2, 13 6, 14 1 13, 14 2 12 Insurance, Owner's Liabd ty Faulty Work 112 (See Defective or Nonconforming Work) Insurance, Property Final Completion and Final Payment 1025,113 4 2 1,4 2 9, 9 8 2, 9 10, 11 12, 11 1 3, 11 3 1, 113 5, Insurance, Stored Materials 123, 1424, 1443 932 Financial Arrangements, Owner's INSURANCE AND BONIE S 221,1322,14114 11 Fire and Extended Coverage Insurance Insurance Companies, Cons nt Part ial cc ancy 11311 991 GENERAL PROVISIONS Intent of the Contract Docu e s 1 121,427,4212,4213,74 Governing Law Interest 131 136 Guarantees (See Warranty) Interpretation Hazardous Materials 12 3, 14, 4 1 1, 5 1, 6 12, 15 1 1 1024,103 Interpretations, Written Identification of Subcontractors and Suppliers 4 2 11,4 2 12, 15 14 5 2 1 Judgment on Final Award Indemnification 1542 3 17, 3 18, 9 10 2, 10 3 3 10 3 5, 10 3 6, 113 12, Labor and Materials, Equipment 1137 1 13, 1 16,34,35,382,383,312,313,3151 Information and Services Required of the Owner 4 2 6, 4 2 7 5 2 1, 6 2 1, 7 3 7, 9 3 2, 9 3 3, 9 5 13 212 ,22,322,3124,31210,613,614,625, 9102,1021,1024,14211,1 �2�-1- 9 6 1 9 6 4, 9 9 2, 9 10 3, 10 3 3, 112, 114, 13 5 1, Labor Disputes 13 5 2, 14 1 14, 14 14, 15 13 831 Initial Decision Laws and Regulations 152 15,323,36,37,31210, 1 ,411,9 4,9 1, Initial Decision Maker, Definition of 10 2 2, 11 1 1, 113, 13 1, 1 4, 3 5 1, 13 2, 3 6, 118 14,1528,154 Initial Decision Maker, Decisions Liens 1422, 1424, 1521, 1522, 1523, 1524, 1525 2 12,933,9 10 2, 9 104, 15 28 Initial Decision Maker, Extent of Authority Limitations, Statutes of 1422 9 1424,1513,1521,1522,1523,1524, 1225,137,15411 15 2 5 Limitations of Liability Injury or Damage to Person or Property 2 3, 3 2 2, 3 5, 3 12 10, 3 17, 3 1 , 426,427, 1028,104 4212,622,942,964,96 ,10 033, Inspections 11 12 112, 113 7,12 2 5, 4 313 ,333,371,422,426,429,942,983, Limitations of Time 992,9101,1221,135 212,22 ,24,322,310,311,3125,3151,427, Instructions to Bidders 5 2, 5 3, 5 4 1, 6 2 4, 7 3, 7, 8 , 9 2, 9 3 1, 9 3 3, 111 9 4 1, 9 5, 9 6, 9 7, 9 8, 9 9, 1 ,1113,11315, Instructions to the Contractor 113 6, 113 10,12 2, 13 5, 3 7 14, 3 2 4, 3 3 1, 3 8 1, 5 2 1 7, 8 2 2, 12, 13 5 2 Loss of Use Insurance 1133 AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 8 Copyright Law and International 5 Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) Material Suppliers Owner, Information and Services Required of the 15, 3 12 1, 4 2 4, 4 2 6, 5 2 1, 9 3, 9 4 2, 9 6, 9 10 5 212 ,22,322,31210,613,614,625,932, Materials, Hazardous 9 6 1, 9 6 4, 9 9 2, 9 10 3, 10 3 3, 112, 113, 13 5 1, 1024,103 13 5 2, 14 1 14, 14 14, 15 13 Materials, Labor, Equipment and Owner's Authority 113, 116,151,341,35,382,383,312,313, 15,211,23,24,342,3 1210,3142,412, 3 15 1, 4 2 6,4 2 7, 5 2 1, 6 2 1, 7 3 7, 9 3 2, 9 3 3, 413,424,429,521,524, 4 1, 6 1, 6 3, 7 2 1, 9513 ,9102,10212,1024,14211,14212 7 3 1, 8 2 2, 8 3 1, 9 3 1, 9 3 2, 51,964,991, Means, Methods, Techniques, Sequences and 9 10 2, 10 3 2, 11 13, 113 , 1 3 10, 12 2 2, 12 3, Procedures of Construction 13 2 2, 14 3, 14 4, 15 2 7 3 3 1, 3 12 10, 4 2 2, 4 2 7, 9 4 2 Owner's Financial Capabili Mechanic's Lien 2 2 1, 13 2 2, 14 1 14 2 12, 1528 Owner's Liability Insuran e Mediation 112 8 3 1, 10 3 5, 10 3 6, 15 2 1, 15 2 5, 15 2 6, 15 3, Owner's Relationship with u contractors 1541 1 12, 5 2, 5 3, 5 4, 9 6 4, 9 1422 Minor Changes in the Work Owner's Right to Carry O tit t ie Work 111,3128,428,71,74 24,1422 MISCELLANEOUS PROVISIONS Owner's Right to Clean U 13 63 Modifications, Definition of Owner's Right to Perform Co structioii ani I to 111 Award Separate Contract Modifications to the Contract 61 1 1 1, 1 1 2, 3 11, 4 1 2, 4 2 1, 5 2 3, 7, 8 3 1, 9 7, Owner's Right to Stop the Work 1032,1131 23 Mutual Responsibility Owner's Right to Suspend the Work 62 143 Nonconforming Work, Acceptance of Owner's Right to Terminate the C act 966,993,123 142 Nonconforming Work, Refection and Correction of Ownership and Use of Dr ecificati s 2 3, 2 4, 3 5, 4 2 6, 6 2 4, 9 5 1, 9 8 2, 9 9 3, 9 10 4, and Other Instruments of ce 1221 111,116,117,15,225,322, 3 17, 2 Notice 53 2 2 1, 2 3, 2 4, 3 2 4, 3 3 1, 3 7 2, 3 12 9, 5 2 1, 9 7, Partial Occupancy or Use 9 10,10 2 2, 11 13, 12 2 2 1, 13 3, 13 5 1, 13 5 2, 966,99,11315 14 1, 14 2, 15 2 8, 15 4 1 Patching, Cutting and Notice, Written 314,625 2 3, 2 4, 3 3 1, 3 9 2, 3 12 9, 3 12 10, 5 2 1, 9 7, 9 10, Patents 1022,103 ,1113,1136,12221,133,14,1528, 317 1541 Payment, Applications for Notice of Claims 4 2 5, 7 3 9, 9 2, 9 3, 9 4, 9 19 3, 9 7, 9 5, 10 1, 3 7 4, 10 2 8, 15 12, 15 4 14 2 3, 14 2 4, 14 4 3 Notice of Testing and Inspections Payment, Certificates for 135 1, 1352 4 2 5, 4 2 9, 9 3 3, 9 4, 9 5, S 6 1, 9 6 6, 9 7, 9 10 1, Observations, Contractor's 9 10 3, 13 7,14 1 13, 14 2 32,374 Payment, Failure of Occupancy 9 5 13, 9 7,9 10 2, 13 6,14 1 13, 14 2 2 2, 9 6 6, 9 8, 113 15 Payment, Final Orders, Written 4 2 1, 4 2 9, 9 8 2, 9 10, 11 1 , 11 4 1, 12 , 1 1 1, 2 3, 3 9 2, 7, 8 2 2, 1139, 121, 12221, 137, 1424, 1443 1352, 143 1 Payment Bond, Performs ce and and OWNER 7 3 7 4, 9 6 7, 9 10 3, 114 2 Payments, Progress Owner, Definition of 9 3, 9 6, 9 8 5, 9 10 3, 13 6, 14 2 3, 15 13 211 PAYMENTS AND COMF LETKIN 9 AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International c Treaties Unauthorized reproduction or distribution of this AIA! Document or any portion of it may result in severe civil and criminal penalties an 6 d will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) Payments to Subcontractors Rights and Remedies 542,9513,962,963,964,967,14212 1 12, 2 3, 2 4, 3 5, 3 7 4, 3 15 2, 4 2 6, 5 3, 5 4, 6 1, PCB 63,73 1, 8 3, 9 5 1, 9 7, 1025, 103, 1222, 1224, 103 1 134, 14, 154 Performance Bond and Payment Bond Royalties, Patents and Copyrights 7 3 7 4, 9 6 7, 9 10 3, 114 317 Permits, Fees, Notices and Compliance with Laws Rules and Notices for Arbiti atio 222,37,3 13, 7 3 7 4, 1022 1541 PERSONS AND PROPERTY, PROTECTION Safety of Persons and Prol iert OF 10 2, 10 4 10 Safety Precautions and Pri igrams Polychlormated Biphenyl 3 3 1, 4 2 2, 4 2 7, 5 3, 10 1, 10 2, 10 4 103 1 Samples, Definition of Product Data, Definition of 3 12 3 3 12 2 Samples, Shop Drawings, I IFUM net Data and Product Data and Samples, Shop Drawings 3 11, 3 12, 4 2 7 3 11, 3 12, 4 2 7 Samples at the Site, Docuin ieni and Progress and Completion 311 4 2 2, 8 2, 9 8, 9 9 1, 14 14, 15 13 Schedule of Values Progress Payments 92,93 1 9 3, 9 6, 9 8 5, 9 10 3, 13 6, 14 2 3, 15 13 Schedules, Construction Project, Definition of 3 10,3 12 1, 3 12 2, 6 13, 1p 1 114 Separate Contracts and Con acto Project Representatives 1 1 4, 3 12 5, 3 14 2, 4 2 4, 4 2 7, 6, 8 3 1,12 12 4210 Shop Drawings, Definition <Sa Property Insurance 3 12 1 1025,113 Shop Drawings, Product D PROTECTION OF PERSONS AND PROPERTY 3 11, 3 12, 4 2 7 10 Site, Use of Regulations and Laws 3 13, 6 1 1, 6 2 1 1 5, 3 2 3, 3 6, 3 7, 3 12 10, 3 13, 4 1 1, 9 6 4, 9 9 1, Site Inspections 1022, 111 ,114,131,134,1351,1352,136,14, 322,333,371,374,4215 2 8, 15 4 Site Visits, Architect's RejectionofWork 374,422,429,942,95 3 5, 4 2 6, 12 2 1 Special Inspections and Testing Releases and Waivers of Liens 4 2 6, 12 2 1, 13 5 9 10 2 Specifications, Definition of Representations 116 32 1,35,3 12 6, 6 2 2, 8 2 1, 9 3 3, 9 4 2, 9 5 1, Specifications 982,9 10 1 111,116,122,15,311,31 10,317, 2 Representatives Statute of Limitations 21 1,3 1 1,39,41 1,42 1,422,42 10,5 1 1, 137, 1541 1 5 1 2, 13 2 1 Stopping the Work Responsibility for Those Performing the Work 2 3, 9 7, 10 3, 14 1 3 3 2, 3 18, 4 2 3, 5 3, 6 13, 6 2, 6 3, 9 5 1, 10 Stored Materials Retamage 6 2 1, 9 3 2, 10 2 12, 10 2 4 9 3 1, 9 6 2, 9 8 5, 9 9 1, 9 10 2, 9 10 3 Subcontractor, Definition o r3,5 Review of Contract Documents and Field 511 Conditions by Contractor SUBCONTRACTORS 32,3127,613 5 Review of Contractor's Submittals by Owner and Subcontractors, Work by Arclutect 12 2, 3 3 2, 3 12 1, 4 2 3, 5 12, 3 10 1, 3 10 2, 3 11, 3 12, 4 2, 5 2, 6 13, 9 2, 9 8 2 967 Review of Shop Drawings, Product Data and Subcontractual Relations Samples by Contractor 5 3, 5 4, 9 3 12, 9 6, 9 10, 1 2, 3 12 AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This Ale Document is protected by U 3 Copyright Law and International , Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) Submittals Tests and Inspections 310 ,311,312,427,521,523,737,92,93, 313 ,333,422,426,429,942,983,992, 9 8, 9 9 1, 9 10 2, 9 10 3, 11 13 9 10 1, 1032, 1141, 1221,135 Submittal Schedule TIME 3 10 2, 3 12 5, 4 2 7 8 Subrogation, Waivers of Time, Delays and Extensi f 611,1137 3 2 4, 3 7 4, 5 2 3, 7 2 1, 7 3 1, 4,83,951,97, Substantial Completion 10 3 2, 10 4, 14 3 2, 15 15, 5 5 4 2 9, 8 1 1, 8 13, 8 2 3, 9 4 2, 9 8, 9 9 1, 9 10 3, Time Limits 122,137 212,22,24,322,310,311, , Substantial Completion, Definition of 5 2, 5 3, 5 4, 6 2 4, 7 3, 7 4, 2, 9_2_,9-3,A_,9_3 - 981 9 4 1, 9 5, 9 6, 9 7, 9 8, 9 9, 1% 11 13, 12 2,13 5, Substitution of Subcontractors 13 7, 14, 15 12, 15 4 523,524 Time Limits on Claims Substitution of Architect 3 7 4, 10 2 8, 13 7, 15 12 413 Title to Work Substitutions of Materials 932,933 3 4 2, 3 5, 7 3 8 Transmission of Data in D git 1 Form Sub - subcontractor, Definition of 16 512 UNCOVERING AND CO CTION OF Subsurface Conditions WORK 374 12 Successors and Assigns Uncovering of Work 132 121 Superintendent Unforeseen Conditions, Concealed or Unknown 39,1026 374,831,103 Supervision and Construction Procedures Unit Prices 122 ,33,34,31210,422,427,613,624, 7332,734 7 13, 7 3 7, 8 2, 8 3 1, 9 4 2, 10, 12, 14, 15 13 Use of Documents Surety 111,15,225,3126,53 5 4 12, 9 8 5, 9 10 2, 9 10 3, 14 2 2, 15 2 7 Use of Site Surety, Consent of 3 13, 6 1 1, 6 2 1 9 10 2, 9 103 Values, Schedule of Surveys 92,93 1 223 Waiver of Claims by the Architect Suspension by the Owner for Convenience 1342 143 Waiver of Claims by the Con ctor Suspension of the Work 9 10 5, 13 4 2, 15 16 542, 14 3 Waiver of Claims by the O er Suspension or Termination of the Contract 9 9 3, 9 10 3, 9 10 4, 12 2 2 , 1 4 2, 14 2 , 15 6 5411,14 Waiver of Consequential D a es Taxes 1424,15 16 3 6, 3 8 2 1, 7 3 7 4 Waiver of Liens Termination by the Contractor 9 102,9104 14 1, 15 16 Waivers of Subrogation Termination by the Owner for Cause 61 1,1137 5 4 1 1, 14 2,15 16 Warranty Termination by the Owner for Convenience 3 5, 4 2 9, 9 3 3, 9 8 4, 9 9 1, 9 1 , 12 22, 13 7 144 Weather Delays Termination of the Architect 15 152 41 3 Work, Definition of Termination of the Contractor 113 14 2 2 Written Consent TERMINATION OR SUSPENSION OF THE 15 2, 3 4 2, 3 7 4 3 12 8, 3 4, 4 12, 9 3 2, 9 8 5, CONTRACT 9 9 1, 9 10 2, 9 10 3,114 1, 13 , 15 44 2 14 Written Interpretations 4211,4212 AIA Document A201" - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA' Document is protected by U S Copyright Law and International 8 Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) Written Notice Written Orders 2 3, 2 4, 3 3 1, 3 9, 3 12 9, 3 12 10, 5 2 1, 8 2 2, 9 7, 1 1 1, 2 3, 3 9, 7, 8 2 2, 12 1, 12 2, 13 5 2, 14 3 1, 9 10, 10 2 2, 10 3, 11 13, 12 2 2, 12 2 4, 13 3, 14, 15 12 1541 AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal 9 penalties and wi 11 be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) ARTICLE 1 GENERAL PROVISIONS § 1 1 BASIC DEFINITIONS § 1 1 1 THE CONTRACT DOCUMENTS The Contract Documents are enumerated in the Agreement between the Owner and Contractor (hereinafter the Agreement) and consist of the Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, documents listed m the Agreement and Modifications issued after execution of the Contract A Modification is (1) written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Dire tiv or (4) a written order for a minor change in the Work issued by the Architect Unless specifically enumera d the Agreement, the Contract Documents do not include the advertisement or invitation to bid, Instructions to B Idders, samp e orms, other information fiumshed by the Owner in anticipation of receiving bids or proposals, tht Co tractor:s.bid -o -- proposal, or portions of Addenda relating to bidding requirements § 112 THE CONTRACT The Contract Documents form the Contract for Construction The Contract represents the en ire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or ments, either written or oral The Contract may be amended or modified only by a Modification The Contract D ocu nents sha no be construed to create a contractual relationship of any kind (1) between the Contractor and th chitect or e Architect's consultants, (2) between the Owner and a Subcontractor or a Sub-subcontractor, (3 between a Owner and the Architect or the Architect's consultants or (4) between any persons or entities other th the Own r d the Contractor The Architect shall, however, be entitled to performance and enforcement of o lig lions and r th Contract intended to facilitate performance of the Architect's duties §113 THE WORK The term "Work" means the construction and services required by the Contract Documents, whether comCb partially completed, and includes all other labor, materials, equipment and services provided or to be pro the Contractor to fulfill the Contractor's obligations The Work may constitute the whole or a part of the § 114 THE PROJECT The Project is the total construction of which the Work performed under the Contract Doc en ay be or a part and which may include construction by the Owner and by separate contractors § 1 1 5 THE DRAWINGS The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, loca dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams § 116 THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written req a is ma s, equipment, systems, standards and workmanship for the Work, and performance of related a ces § 117 INSTRUMENTS OF SERVICE Instruments of Service are representations, in any medium of expression now known or lat r d veloped, o th tangible and intangible creative work performed by the Architect and the Architect's consu s under th it respective professional services agreements Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, and other similar materials § 118 INITIAL DECISION MAKER The Initial Decision Maker is the person identified in the Agreement to render initial decisions 9 Claims in accordance with Section 15 2 and certify termination of the Agreement under Section 14 2 2 § 12 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS § 12 1 The intent of the Contract Documents is to include all items necessary for the p ex cution and completion of the Work by the Contractor The Contract Documents are complementary, d hat is required by one shall be as binding as if required by all, performance by the Contractor shall be require o y to the extent consistent with the Contract Documents and reasonably inferable from them as being nece ary o pro uce tMe indicated results AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA` Document is protected by U 8 Copyright Law and International ZO Treataee Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 12 2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade -§ 12 3 Unless otherwise stated in the Contract Documents, words that have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized me nings § 13 CAPITALIZATION Terms capitalized in these General Conditions include those that are (1) specifically define , ( the titles of numbered articles or (3) the titles of other documents published by the American Institute f AicIfitects § 14 INTERPRETATION In the interest of brevity the Contract Documents frequently omit modifying words such as "al ' and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one tats ent and appears in another is not intended to affect the interpretation of either statement § 15 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS C F S - § 15 1 The Architect and the Arcltect's consultants shall be deemed the authors and owns s o their resp -cti fe " Instruments of Service, including the Drawings and Specifications, and will retain all comr, ion law, statu ry Md other reserved rights, including copyrights The Contractor, Subcontractors, Sub-subcontractor , and mat na or equipment suppliers shall not own or claim a copyright in the Instruments of Service Sub ltta or distnb tlo to meet official regulatory requirements or for other purposes in connection with this Project no � . s publication in derogation of the Architect's or Architect's consultants' reserved rights § 15 2 The Contractor, Subcontractors, Sub - subcontractors and material or equipment suppliers are authorized to use and reproduce the Instruments of Service provided to them solely and exclusively for execution of the Work Al copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of-S ice The Contractor, Subcontractors, Sub - subcontractors, and material or equipment suppliers may no a the Instruments of Service on other projects or for additions to this Project outside the scope o e Wor out t e specific written consent of the Owner, Architect and the Architect's consultants § 16 TRANSMISSION OF DATA IN DIGITAL FORM If the parties intend to transmit Instruments of Service or any other information or documentation in dlglta they shall endeavor to establish necessary protocols governing such transmissions, unless otherwise already provided in the Agreement or the Contract Documents ARTICLE 2 OWNER §21 GENERAL § 21 1 The Owner is the person or entity identified as such In the Agreement and is referre rentive hou th Contract Documents as if singular in number The Owner shall designate in writing a repre who hall ave express author ity to bind the Owner with respect to all matters requiring the Owner's appr on tlo Except as otherwise provided in Section 4 2 1, the Architect does not have such authority O er" cans the Owner or the Owner's authorized representative § 21 2 The Owner shall furnish to the Contractor within fifteen days after receipt of a watt t; rnfonnatt necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic's lien rights Such information shall include a correct statement of the record legal title to the property on which 6Contract 84"c usually referred to as the site, and the Owner's interest therein § 2 2 INFORMATION AND SERVICES REQUIRED OF THE OWNER § 2 21 Prior to commencement of the Work, the Contractor may request in writing that the e reasonable evidence that the Owner has made financial arrangements to fulfill the Owner's oder the Contract Thereafter, the Contractor may only request such evidence if (1) the Owner fails o ents to the Contractor as the Contract Documents require, (2) a change in the Work materially change Sum, or (3) the Contractor identifies in writing a reasonable concern regarding the Owner's ability to a en ue The Owner shall furnish such evidence as a condition precedent to commencement or conti nuationof-the-Workor AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA l Document is protected by U S Copyright Law and International 11 Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) the portion of the Work affected by a material change After the Owner furnishes the evidence, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor § 2 2 2 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, including those required under Section 3 7 1, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structur for permanent changes in existing facilities § 2 2 3 The Owner shall funush surveys describing physical characteristics, legal limitation an I utili locations fo r the site of the Project, and a legal description of the site The Contractor shall be entitled to rely on a accuracy of information furnished by the Owner but shall exercise proper precautions relating to the sa a per-formance -of-th Work § 2 2 4 The Owner shall furnish information or services required of the Owner by the Contr ct ocuments with reasonable promptness The Owner shall also furnish any other information or services un er a Owner's control and relevant to the Contractor's performance of the Work with reasonable promptness afte c ivmg the Contractor's written request for such information or services § 2 2 5 Unless otherwise provided in the Contract Documents, the Owner shall furnish to th C ntractor o ie c )py of the Contract Documents for purposes of making reproductions pursuant to Section 1 5 2 § 2 3 OWNER'S RIGHT TO STOP THE WORK If the Contractor fails to correct Work that is not in accordance with the requirements of th C t o uments required by Section 12 2 or repeatedly fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated, however, the right of the Owner to stop the Work shall not give rise to a duty on the a of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except a extent required by Section 6 13 § 2 4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor defaults or neglects to carry out the Work in accordance with the Contract umen s fa s within a ten -day period after receipt of written notice from the Owner to commence and continue co on o su default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies the er may have, correct such deficiencies In such case an appropriate Change Order shall be issued deductin g from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and compensation for the Architect's additional services made necessary by ss h-d ault, or failure Such action by the Owner and amounts charged to the Contractor are both subject S prior appr a Architect If payments then or thereafter due the Contractor are not sufficient to cover such mo ts, Co shall pay the difference to the Owner ARTICLE 3 CONTRACTOR §31 GENERAL § 31 1 The Contractor is the person or entity identified as such in the Agreement and is ref rre to throw ou Contract Documents as if singular in number The Contractor shall be lawfully licensed, if required m the jurisdiction where the Project is located The Contractor shall designate in writing; repres ative- who-shall -ha express authority to bind the Contractor with respect to all matters under this Contract The term "Contractor" means the Contractor or the Contractor's authorized representative § 31 2 The Contractor shall perform the Work in accordance with the Contract Documents § 31 3 The Contractor shall not be relieved of obligations to perform the Work in accordan a th the Contract Documents either by activities or duties of the Architect in the Architect's administration o th Contract, or by tests, inspections or approvals required or performed by persons or entities other than the Contra for AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal 12 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 3 2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 3 21 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents § 3 2 2 Because the Contract Documents are complementary, the Contractor shall, before st g each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of I ie Work, as well as the information fiirmshed by the Owner pursuant to Section 2 2 3, shall take field measure en of any existing conditions related to that portion of the Work, and shall observe any conditions at the site a ffec ing it These obligations are for the purpose of facilitating coordination and construction by the Contract r anif are not 13i the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents, hoeu r Gontracto r. shall promptly report to the Architect any errors, inconsistencies or omissions discovered b i or made known to the Contractor as a request for information in such form as the Architect may require It is reco 3 ed that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licens d d,-sign professional, unless otherwise specifically provided in the Contract Documents § 3 2 3 The Contractor is not required to ascertain that the Contract Documents are in accor an e with ap is le laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authoritic s, b it the Con raci or shall promptly report to the Architect any nonconformity discovered by or made known to he C ontractor as request for information in such form as the Architect may require § 3 2 4 If the Contractor believes that additional cost or time is involved because of clanfc do do he Architect issues in response to the Contractor's notices or requests for information pursuan to SectjMs_3 -2 2, 3 2 3, the Contractor shall make Claims as provided in Article 15 If the Contractor fails to perform the obligations of Sections 3 2 2 or 3 2 3, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations If the Contractor performs those obligations, the Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencie omissions in the Contract Documents, for differences between field measurements or conditions d'11ie Co ct Documents, or for nonconformities of the Contract Documents to applicable laws, statutes, manc , odes, 1 and regulations, and lawful orders of public authorities § 3 3 SUPERVISION AND CONSTRUCTION PROCEDURES § 3 31 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters If the Contract Documents rve-s ecific instructions concerning construction means, methods, techniques, sequences or procedures, a Contracto hall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely resp iLSi a for a �o stt safety of such means, methods, techniques, sequences or procedures If the Contractor dete es that su h e methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written n tice the Owner and Architect and shall not proceed with that portion of the Work without further w - itte n instructi ns om the Arcltect If the Contractor is then instructed to proceed with the required means, meth ds, techmque sequences or procedures without acceptance of changes proposed by the Contractor, the O e shall be s lel responsible for any loss or damage ansmg solely from those Owner - required means, methods, techniques, sequences or procedures § 3 3 2 The Contractor shall be responsible to the Owner for acts and omissions of the Contrj�a—y- ' ploy , Subcontractors and their agents and employees, and other persons or entities performing po Work for, or on behalf of, the Contractor or any of its Subcontractors § 3 3 3 The Contractor shall be responsible for inspection of portions of Work already perfo rmine that such portions are in proper condition to receive subsequent Work § 3 4 LABOR AND MATERIALS § 3 41 Unless otherwise provided in the Contract Documents, the Contractor shall provide a or, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, tr , AIA Document A201° - 2007 Copyright O 1 911 1915 1918 1925 1937 1951 1956 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This ALA Document is protected by U S Copyright Law and International 13 Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work § 3 4 2 Except in the case of minor changes in the Work authorized by the Architect in accordance with Sections 3 12 8 or 7 4, the Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect and in accordance with a Change Order or Construction Change Directive § 3 4 3 The Contractor shall enforce strict discipline and good order among the Contractor'4 employees and other persons carrying out the Work The Contractor shall not permit employment of unfit perso oi persons not properly skilled in tasks assigned to them § 3 5 WARRANTY The Contractor warrants to the Owner and Architect that materials and equipment ftirmshei I un Jer the Contract will be of good quality and new unless the Contract Documents require or permit otherwise Th Contractor further warrants that the Work will conform to the requirements of the Contract Documents and wl a free from defects, except for those inherent in the quality of the Work the Contract Documents require or pewriqWork, materials, or equipment not conforming to these requirements may be considered defective The Contra tor' warran ex ludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the on actor, lm ro er or insufficient maintenance, improper operation, or normal wear and tear and normal usage I re fired by tl ie Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of in to als and eq npr ient § 3 6 TAXES The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by tLe legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect § 3 7 PERMITS, FEES, NOTICES AND COMPLIANCE WITH LAWS § 3 71 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pa a bui g permit as well as for other permits, fees, licenses, and inspections by government agencies cess prope execution and completion of the Work that are customarily secured after execution of the ont and legally required at the time bids are received or negotiations concluded § 3 7 2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, es, rules and regulations, and lawful orders of public authorities applicable to performance of the Work § 3 7 3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, or s codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appr hate respo ibillty for such Work and shall bear the costs attributable to correction § 3 7 4 Concealed or Unknown Conditions If the Contractor encounters conditions at the sit that are (1 subsurface or otherwise concealed physical conditions that differ materially from those ind cat d in the C ntr ct Documents or (2) unknown physical conditions of an unusual nature, that differ materially i7o those or a ly found to exist and generally recognized as inherent in construction activities of the charactt r p ovlded for e Contract Documents, the Contractor shall promptly provide notice to the Owner and the hitect before conditions are disturbed and in no event later than 21 days after first observance of the conditions Th tect-wi prornptI investigate such conditions and, if the Architect determines that they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, will comme equitable adjustment in the Contract Sum or Contract Tine, or both If the Architect determine at the conditions at the site are not materially different from those indicated in the Contract Documents and Lth(rn nge in the terms of the Contract is justified, the Architect shall promptly notify the Owner and Contriting, stating the reasons If either party disputes the Architect's determination or recommendation, that parceed as provided in Article 15 § 3 7 5 If, In the course of the Work, the Contractor encounters human remains or recogniz tence of burial markers, archaeological sites or wetlands not indicated in the Contract Documents, the Co a imme is e y suspend any operations that would affect them and shall notify the Owner and Architect A-dsuc notice, the Owner shall promptly take any action necessary to obtain governmental authorization required to resume AIA Document A201" - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International 14 Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) the operations The Contractor shall continue to suspend such operations until otherwise instructed by the Owner but shall continue with all other operations that do not affect those remains or features Requests for adjustments in the Contract Sum and Contract Time ansing from the existence of such remains or features may be made as provided in Article 15 § 3 8 ALLOWANCES § 3 81 The Contractor shall include in the Contract Sum all allowances stated in the Contra Ith cuments Items covered by allowances shall be supplied for such amounts and by such persons or entities Owne r may direct, but the Contractor shall not be required to employ persons or entities to whom the Contr ac s reasonable objection § 3 8 2 Unless otherwise provided in the Contract Documents, 1 Allowances shall cover the cost to the Contractor of materials and equipment de ivered at the site and all required taxes, less applicable trade discounts, 2 Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included a Contract Sum but not in the allowances, and 3 Whenever costs are more than or less than allowances, the Contract Sum sh 11 be adjusted accordingly by Change Order The amount of the Change Order shall reflect (1) the differt nce between actual costs and the allowances under Section 3 8 2 1 and (2) chan s i Contract is costs under Section 3 8 2 2 § 3 8 3 Materials and equipment under an allowance shall be selected by the Owner with re sonabl e p ne § 3 9 SUPERINTENDENT § 3 91 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attend at the Project site during performance of the Work The superintendent shall represent the Contractor, communications given to the superintendent shall be as binding as if given to the Contractor § 3 9 2 The Contractor, as soon as practicable after award of the Contract, shall furnish in iti the Owner through the Architect the name and qualifications of a proposed superintendent The Archite &wavy rep thi 1 days to the Contractor in writing stating (1) whether the Owner or the Architect has reasonable objee i to the proposed superintendent or (2) that the Architect requires additional time to review Failure of the Arclut c eply within the 14 day period shall constitute notice of no reasonable objection § 3 9 3 The Contractor shall not employ a proposed superintendent to whom the Owner or Archit ade reasonable and timely objection The Contractor shall not change the superintendent without a Owner's nsent which shall not unreasonably be withheld or delayed § 310 CONTRACTOR'S CONSTRUCTION SCHEDULES § 3 10 1 The Contractor, promptly after being awarded the Contract, shall prepare and sub t f r the Owner s d Architect's information a Contractor's construction schedule for the Work The schedule st all of exceed tim limits current under the Contract Documents, shall be revised at appropriate intervals as required y e conditic ns f the Work and Protect, shall be related to the entire Project to the extent required by the Contra (t Documents, and shall provide for expeditious and practicable execution of the Work § 310 2 The Contractor shall prepare a submittal schedule, promptly after being awarded the Cr d -there as necessary to maintain a current submittal schedule, and shall submit the schedules) for the a roval The Architect's approval shall not unreasonably be delayed or withheld The submittal sche be coordinated with the Contractor's construction schedule, and (2) allow the Architect reason eview submittals If the Contractor fails to submit a submittal schedule, the Contractor shall not b ey increase in Contract Sum or extension of Contract Time based on the time required for review of su m§ 310 3 The Contractor shall perform the Work in general accordance with the most recent cmitted to the Owner and Architect AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International 15 Treaties Unauthorized reproduction or distribution of this ALA' Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699096292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 311 DOCUMENTS AND SAMPLES AT THE SITE The Contractor shall maintain at the site for the Owner one copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to indicate field changes and selections made during construction, and one copy of approved Shop Drawings, Product Data, Samples and similar required submittals These shall be available to the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work as a record of the Work as constructed § 312 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES § 3 12 1 Shop Drawings are drawings, diagrams, schedules and other data specially prepare fo the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier or distributor to r lustrate some portion o the Work § 312 2 Product Data are illustrations, standard schedules, performance charts, instructions br chures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some o ion of the Work § 312 3 Samples are physical examples that illustrate materials, equipment or workmanshir establish standards by which the Work will be fudged § 312 4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Do um nts The p ose is to demonstrate the way by which the Contractor proposes to conform to the information gr en nd the de rgn concept expressed in the Contract Documents for those portions of the Work for which the o act Doc me is require submittals Review by the Architect is subject to the hmrtatrons of Section 4 2 7 Imo mm ls upon which the Architect is not expected to take responsive action maybe so identified in e Con ct Dopumm�ents. Submittals that are not required by the Contract Documents may be returned by the Architect without action § 312 5 The Contractor shall review for compliance with the Contract Documents, approve <and it to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Cu n s in accordance with the submittal schedule approved by the Architect or, in the absence of an ubmr schedule, with reasonable promptness and in such sequence as to cause no delay in the Wo rvrtre o the Owner or of separate contractors § 312 6 By submitting Shop Drawings, Product Data, Samples and similar submittals, the resen s to the Owner and Architect that the Contractor has (1) reviewed and approved them, (2) deter ven r materials, field measurements and field construction criteria related thereto, or will do so aked and coordinated the information contained within such submittals with the requirements of the oranof the Contract Documents § 312 7 The Contractor shall perform no por tion of the Work for which the Contract Docu ents equrr ub and review of Shop Drawings, Product Data, Samples or similar submittals until the respec rve ubmrttal as ee approved by the Architect § 312 8 The Work shall be in accordance with approved submittals except that the Contrac r all not be elr ved of responsibility for deviations from requirements of the Contract Documents by the Archrtec 's roval of h Drawings, Product Data, Samples or simlar submittals unless the Contractor has specrfical y informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written oval­to-thesp deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation The Contractor shall not be relieved of responsibility for errors or omrssro m-Shop Drawings, Product Data, Samples or siilar submittals by the Architect's approval thereof § 312 9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Dr n s, ProEffortion Samples or similar submittals, to revisions other than those requested by the Architect on p evr us sub absence of such written notice, the Architect's approval of a resubmission shall not apply t su h revisi § 3 12 10 The Contractor shall not be required to provide professional services that constrtu a practic architecture or engineering unless such services are specifically required by the Contract D cumen s o the Work or unless the Contractor needs to provide such services in order to carry out the on ' responsibilities for construction means, methods, techniques, sequences and procedures The Contractor shall not be AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International 1 6 Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) required to provide professional services in violation of applicable law If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such profess 'On 1 Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared y others, shall bear such professional's written approval when submitted to the Architect The Owner and the J xc tect shall be entitled i to rely upon the adequacy, accuracy and completeness of the services, certifications and ap ro als performed or provided by such design professionals, provided the Owner and Architect have specified to the Contractor a performance and design criteria that such services must satisfy Pursuant to this Section 3 12 1 the®ArchAect will —� review, approve or take other appropriate action on submittals only for the limited purpose Df c ieckmg; for conformance with information given and the design concept expressed in the Contract Doc ancits The Contractor shall not be responsible for the adequacy of the performance and design criteria specified u i thc Contract Documents § 313 USE OF SITE The Contractor shall confine operations at the site to areas permitted by applicable laws, st tutc s, ordinan es, codes, rules and regulations, and lawful orders of public authorities and the Contract Documents a ad all not ui reasonably encumber the site with materials or equipment § 314 CUTTING AND PATCHING § 3 14 1 The Contractor shall be responsible for cutting, fittmg or patching required to com let the A o 0 o e its parts fit together properly All areas requiring cutting, fittmg and patching shall be restored to the condition existing prior to the cutting, fitting and patching, unless otherwise required by the Contract Documents § 314 2 The Contractor shall not damage or endanger a portion of the Work or fully or partially complete construction of the Owner or separate contractors by cutting, patching or otherwise altering suchS ctio r excavation The Contractor shall not cut or otherwise alter such construction by the Owner ra sepa contr to except with written consent of the Owner and of such separate contractor, such consent sh 1 no a unreasona ly withheld The Contractor shall not unreasonably withhold from the Owner or a separate con for the trac or' consent to cutting or otherwise altering the Work § 315 CLEANING UP § 3 15 1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract At completion of the Work, the Contractor shalLrern vy e waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus in t6rnals from a d abou the Project § 315 2 If the Contractor fails to clean up as provided in the Contract Documents, the Own r ay do so d O er shall be entitled to reimbursement from the Contractor § 316 ACCESS TO WORK The Contractor shall provide the Owner and Architect access to the Work in preparation progress wherever located § 317 ROYALTIES, PATENTS AND COPYRIGHTS The Contractor shall pay all royalties and license fees The Contractor shall defend suits oCclai infringement of copyrights and patent rights and shall hold the Owner and Architect harmless from loss ereof, u shall not be responsible for such defense or loss when a particular design, process or prodicular manufacturer or manufacturers is required by the Contract Documents, or where the copyns are contained in Drawings, Specifications or other documents prepared by the Owner or Archer, if the Contractor has reason to believe that the required design, process or product is an infringe pyright or a patent, the Contractor shall be responsible for such loss unless such information is prompt to the Architect AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International 1 , 7 Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 06/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 318 INDEMNIFICATION § 3 18 1 To the fullest extent permitted by law the Contractor shall indemnify and hold harmless the Owner, Architect, Arclutect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, 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), but only to thr tent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or mdirectl a loyed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage to or expense is caused in part by a party indemnified hereunder Such obligation shall not be construed to eg e, abridge, or reduce other rights or obligations of indemmty that would otherwise exist as to a party or person d scribed in this ection 3 18 § 318 2 In claims against any person or entity indemnified under tlus Section 3 18 by an en plo ee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts he may be liable, the indemmfication obligation under Section 3 18 1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under worker mpensation acts, disability benefit acts or other employee benefit acts ARTICLE 4 ARCHITECT § 41 GENERAL § 41 1 The Owner shall retain an architect lawfully licensed to practice architecture or an ei iti lawfully prac icing architecture in the jurisdiction where the Project is located That person or entity is identified a ectiwth Agreement and is referred to throughout the Contract Documents as if singular in number § 41 2 Duties, responsibilities and limitations of authority of the Arcltect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor and Architect Consent shall not be unreasonably withheld § 41 3 If the employment of the Architect is terminated, the Owner shall employ a success clute o wh m the Contractor has no reasonable objection and whose status under the Contract Document sh a that of the Arclutect § 4 2 ADMINISTRATION OF THE CONTRACT § 4 21 The Architect will provide administration of the Contract as described in the Contract Documents and will an Owner's representative during construction until the date the Architect issues the final Certificate for Payment The Architect will have authority to act on behalf of the Owner only to the extent provided in the n ct Documents § 4 2 2 The Arcltect will visit the site at intervals appropriate to the stage of construction, r a otherwis ag ed with the Owner, to become generally familiar with the progress and quality of the portion Work co ple , and to determine in general if the Work observed is being performed in a manner mdicatm th t the Work w en fully completed, will be in accordance with the Contract Documents However, the Archit t 11 not be qu ed to make exhaustive or continuous on -site inspections to check the quality or quantity of the or The Arch tec will not have control over, charge of, or responsibility for, the construction means, methods, to ques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since are-solely°th Contractor's rights and responsibilities under the Contract Documents, except as provided in Section 3 3 1 § 4 2 3 On the basis of the site visits, the Architect will keep the Owner reasonably informed ab e progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations oin e' o�ntract Documents and from the most recent construction schedule submitted by the Contractor, an ( efects and deficiencies observed m the Work The Architect will not be responsible for the Contractor s f lure to perform the Work in accordance with the requirements of the Contract Documents The Architect will of ave control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontracto , o their agents or employees, or any other persons or entities performing portions of the Work AIA Document A201m - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA! Document or any portion of it may result in severe civil and criminal 18 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 4 2 4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract Communications by and with the Architect's consultants shall be through the Architect Communications by and with Subcontractors and material suppliers shall be through the Contractor Communications by and with separate contractors shall be through the Owner § 4 2 5 Based on the Architect's evaluations of the Contractor's Applications for Payment, a chitect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such o ints § 4 2 6 The Architect has authority to reject Work that does not conform to the Contract Do urr ants - .Whenever th Architect considers it necessary or advisable, the Architect will have authority to require pe tion or testing of the Work in accordance with Sections 13 5 2 and 13 5 3, whether or not such Work is fabricate stalled or completed However, neither this authority of the Architect nor a decision made in good faith either to xei cise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Con FaMor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities pe tff rung portions of the Work § 4 2 7 The Architect will review and approve, or take other appropriate action upon, the C an ctor's sub mitl als such as Shop Drawings, Product Data and Samples, but only for the limited purpose of the kin g for conform mce with information given and the design concept expressed in the Contract Documents The 4rc tect's action ill be taken in accordance with the submittal schedule approved by the Architect or, in the absen e o pped submittal schedule, with reasonable promptness while allowing sufficient time in the Archi ec 1'&pjo e s o a judgment to permit adequate review Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents The Architect's review of the Contractor's submittals shall not rev e Contractor of the obligations under Sections 3 3, 3 5 and 3 12 The Architect's review shall not c tute a va of safety precautions or, unless otherwise specifically stated by the Architect, of any cons ion me , meth ds techniques, sequences or procedures The Architect's approval of a specific item shall not di a proval of Em assembly of which the item is a component § 4 2 8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize changes in the Work as provided in Section 7 4 The Architect will investigate and make determinations and recommendations regarding concealed and unknown conditions as provided in Section 3 7 4 § 4 2 9 The Architect will conduct inspections to determine the date or dates of Substantial C pletnon an the dat of final completion, issue Certificates of Substantial Completion pursuant to Section 9 8, re env t e Owner, for the Owner's review and records, written warranties and related documents rt ed y the Co tra tan assembled by the Contractor pursuant to Section 9 10, and issue a final Certificate for Pa eni pursuant t Se on 9 10 § 4 210 If the Owner and Architect agree, the Architect will provide one or more project r e )res ontatives t as nst in carrying out the Architect's responsibilities at the site The duties, responsibilities and limil ations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Con et - LD § 4 211 The Architect will interpret and decide matters concerning performance under, and requnre5cnts=gfi; the Contract Documents on written request of either the Owner or Contractor The Architect' s resp nfse to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable pro ptne § 4 212 Interpretations and decisions of the Architect will be consistent with the intent of, a. asonably inferable from, the Contract Documents and will be in writing or in the form of drawings When ma g such interpretations and decisions, the Architect will endeavor to secure faithful performance by both Owner a d C ntractor, will not show partiality to either and will not be liable for results of interpretations or decisions ren ere in good faith § 4 213 The Architect's decisions on matters relating to aesthetic effect will be final of cons Lstent-wahthe-mtent- expressed in the Contract Documents AIA Document A201" - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International 1 9 Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 4 214 The Architect will review and respond to requests for information about the Contract Documents The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness If appropriate, the Architect will prepare and issue supplemental Drawings and Specifications in response to the requests for information ARTICLE 5 SUBCONTRACTORS § 51 DEFINITIONS § 51 1 A Subcontractor is a person or entity who has a direct contract with the Contractor i pe form a portion of the Work at the site The term "Subcontractor" is referred to throughout the Contract Docums as i sinngular in number and means a Subcontractor or an authorized representative of the Subcontractor to bcontractor" does not include a separate contractor or subcontractors of a separate contractor § 51 2 A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site The term "Sub- subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub - subcontractor or an authorized repres enu tive of the Sub - subcontractor § 5 2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WOR § 5 21 Unless otherwise stated in the Contract Documents or the bidding requirements, the Cor tractor, as soo ri as practicable after award of the Contract, shall furnish in writing to the Owner through the clu ect the na es of persons or entities (including those who are to furnish materials or equipment fabricated to a s n) proposed for each principal portion of the Work The Architect may reply within 14 days t e Co 0 writing stating (1) whether the Owner or the Architect has reasonable objection to any such proposed person or entity or (2) that the Architect requires additional time for review Failure of the Owner or Architect to reply within the 14 -day period shall constitute notice of no reasonable objection § 5 2 2 The Contractor shall not contract with a proposed person or entity to whom the Owner or chitect h a e reasonable and timely objection The Contractor shall not be required to contract with anyo or, ho e Contractor has made reasonable objection § 5 2 3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Con or, the Contractor shall propose another to whom the Owner or Architect has no reasonable objection If the propo but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shal be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work However, no mcr a ract Sum or Contract Time shall be allowed for such change unless the Contractor has acted pro tly and resp in submitting names as required § 5 2 4 The Contractor shall not substitute a Subcontractor, person or entity previously sele ted if the O Architect makes reasonable objection to such substitution § 5 3 SUBCONTRACTUAL RELATIONS By appropriate agreement, written where legally required for validity, the Contractor shall equire each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be boun e-@oiitraetarb terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these D currents, assumes toward the Owner and Architect Each subcontract agreement shall preserve and prote a rights of the Owner and Architect under the Contract Documents with respect to the Work to be performs by t cT u contraG so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontr cto ' unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and re ess gainst the Contractor that the Contractor, by the Contract Documents, has against the Owner Where pp priate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub -subc ntr ctors The Contractor shall make available to each proposed Subcontractor, prior to the execution of t e s bcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon wn en reques o e Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontr AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International 20 Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) be at variance with the Contract Documents Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub - subcontractors § 5 4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS § 5 41 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner, provided that 1 assignment is effective only after termination of the Contract by the Owner or c ause pursuant to Section 14 2 and only for those subcontract agreements that the Owner acce is I y notifying the Subcontractor and Contractor in writing, and 2 assignment is subject to the prior rights of the surety, if any, obligated undei bon 'relating tot the Contract When the Owner accepts the assignment of a subcontract agreement, the Owner assumes tt JCntractor's rights and obligations under the subcontract § 5 4 2 Upon such assignment, if the Work has been suspended for more than 30 days, the S u ntractor's compensation shall be equitably adjusted for increases in cost resulting from the suspensio § 5 4 3 Upon such assignment to the Owner under this Section 5 4, the Owner may further E ssi the sub c :)nti act to a successor contractor or other entity If the Owner assigns the subcontract to a successor cor tra for or otht r eE tity, the Owner shall nevertheless remain legally responsible for all of the successor contractor' ob ide the su bcontract ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 61 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § 61 1 The Owner reserves the right to perform construction or operations related to the Project with the Owner' o ::� wn forces, and to award separate contracts in connection with other portions of the Project or other con ction or operations on the site under Conditions of the Contract identical or substantially similar to these el mg th s portions related to insurance and waiver of subrogation If the Contractor claims that delay additio cost i involved because of such action by the Owner, the Contractor shall make such Claim as pr vi Article 15 § 61 2 When separate contracts are awarded for different portions of the Project or other constructio opera ion on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who ex's tes each separate Owner - Contractor Agreement § 61 3 The Owner shall provide for coordination of the activities of the Owner's own forces and f4ach separate contractor with the Work of the Contractor, who shall cooperate with them The Contractors all participa with other separate contractors and the Owner in reviewing their construction schedules The Co tra r sha ma e y revisions to the construction schedule deemed necessary after a point review and mutual ag a ent The ns ct schedules shall then constitute the schedules to be used by the Contractor, separate contrac rs d the O er til subsequently revised § 61 4 Unless otherwise provided in the Contract Documents, when the Owner performs c s ction or er tions related to the Project with the Owner's own forces, the Owner shall be deemed to be subje to the same obligations and to have the same rights that apply to the Contractor under the Conditions of the Contra , cIudmg-, withou excluding others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12 § 6 2 MUTUAL RESPONSIBILITY § 6 21 The Contractor shall afford the Owner and separate contractors reasonable opporturothe n an storage of their materials and equipment and performance of their activities, and shall core the Contractor's construction and operations with theirs as required by the Contract Documen § 6 2 2 If part of the Contractor's Work depends for proper execution or results upon cons ns by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that porromptly report to the A rchitect apparent discrepancies or defects in such other construction that wo Id i e for such proper execution and results Failure of the Contractor so to report shall constitute wledgmenttha AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This ALA Document is protected by U 3 Copyright Law and International 21 Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable § 6 2 3 The Contractor shall reimburse the Owner for costs the Owner incurs that are payable to a separate contractor because of the Contractor's delays, improperly timed activities or defective construction The Owner shall be responsible to the Contractor for costs the Contractor incurs because of a separate contract elays, improperly timed activities, damage to the Work or defective construction § 6 2 4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to o leted or partially completed construction or to property of the Owner or separate contractors as provided m ection § 6 2 5 The Owner and each separate contractor shall have the same responsibilities for cuff ng d patching as are described for the Contractor in Section 3 14 § 6 3 OWNER'S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate contractors and the Owner as to the respc figil ility under their respective contracts for maintaining the premises and surrounding area free from waste ma ena Is and rub ) the Owner may clean up and the Architect will allocate the cost among those responsible ARTICLE 7 CHANGES IN THE WORK §71 GENERAL § 71 1 Changes in the Work may be accomplished after execution of the Contract, and witqout bivalidatnig t le Contract, by Change Order, Construction Change Directive or order for a minor change in e o k sub ect to th e limitations stated in this Article 7 and elsewhere in the Contract Documents § 71 2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect, a Construc Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by t Contractor, an order for a minor change in the Work may be issued by the Architect alone § 71 3 Changes in the Work shall be performed under applicable provisions of the Contrac D ents, J amnd Contract or shall proceed promptly, unless otherwise provided in the Change Order, Constru tiChan iv or order for a minor change in the Work § 7 2 CHANGE ORDERS § 7 21 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect stating their agreement upon all of the following 1 The change in the Work, 2 The amount of the adjustment, if any, in the Contract Sum, and 3 The extent of the adjustment, if any, in the Contract Time § 7 3 CONSTRUCTION CHANGE DIRECTIVES § 7 31 A Construction Change Directive is a written order prepared by the Architect and si ne by the O e and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the on act Sum o C tract Tune, or both The Owner may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or o •revisions; th Contract Sum and Contract Tune being adjusted accordingly § 7 3 2 A Construction Change Directive shall be used in the absence of total agreement on rentsubstantiating of a Change Order § 7 3 3 If the Construction Change Directive provides for an adjustment to the Contract Su stment shall be based on one of the following methods 1 Mutual acceptance of a lump sum properly itemized and supported by suffi data to permit evaluation, 2 Unit prices stated in the Contract Documents or subsequently agreed upon, 3 Cost to be determined in a manner agreed upon by the parties and a mutuall ptahle_f percentage fee, or AIA Document A201" - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This ALA Document is protected by U 3 Copyright Law and International 22 Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) 4 As provided in Section 7 3 7 § 7 3 4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed,will cause substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted § 7 3 5 Upon receipt of a Construction Change Directive, the Contractor shall promptly pro ee with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement it the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time § 7 3 6 A Construction Change Directive signed by the Contractor indicates the Contractor' ag eement therewith, including adjustment in Contract Sum and Contract Time or the method for determining th , inch agreement shall be effective immediately and shall be recorded as a Change Order § 7 3 7 If the Contractor does not respond promptly or disagrees with the method for adjusti rien in the Co i tra t Sum, the Architect shall determine the method and the adjustment on the basis of reasonable exp nd es and avil igs of those performing the Work attributable to the change, including, in case of an increase in tt e C )ntract Su n, amount for overhead and profit as set forth in the Agreement, or if no such amount is set fo rth i n the Agr em nt, a reasonable amount In such case, and also under Section 7 3 3 3, the Contractor shall keep Lee t, suc form as the Architect may prescribe, an itemized accounting together with appropriate supportin d oth i� provided in the Contract Documents, costs for the purposes of this Section 7 3 7 shall be 11 t o g 1 Costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance, 2 Costs of materials, supplies and equipment, including cost of transportation, whether incorporate consumed, 3 Rental costs of machinery and equipment, exclusive of hand tools, whether rented o the Contractor or others, niff 4 Costs of premiums for all bonds and insurance, pernut fees, and sales, use o s taxes relate d t the Work, and 5 Additional costs of supervision and field office personnel directly attributable to the c e § 7 3 8 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change that results m a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhe •an rofit shall be figured on the basis of net increase, if any, with respect to that change § 7 3 9 Pending final determination of the total cost of a Construction Change Directive to a wner, the o ac may request payment for Work completed under the Construction Change Directive in Ap lic ions for P ym The Architect will make an interim determination for purposes of monthly certification for a ent for se osts and certify for payment the amount that the Architect determines, in the Architect's profes ion 1 judgmen , to be reasonably justified The Architect's interim determination of cost shall adjust the Contrac Su on the sa a asis as a Change Order, subject to the right of either party to disagree and assert a Claim in acc rdance with Article 15 § 7 310 When the Owner and Contractor agree with a determination made by the Architect concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustmeuts; such agreement shall be effective immediately and the Architect will prepare a Change Order Chan Orders may be issued for all or any part of a Construction Change Directive § 7 4 MINOR CHANGES IN THE WORK The Architect has authority to order minor changes in the Work not involving adjustment 1 th Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documt nts Such changes will be effected by written order signed by the Architect and shall be binding on the Owner and Cc ntr ctor AIA Document A201" - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International 23 Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) ARTICLE 8 TIME § 81 DEFINITIONS § 81 1 Unless otherwise provided, Contract Tune is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work § 81 2 The date of commencement of the Work is the date established in the Agreement § 81 3 The date of Substantial Completion is the date certified by the Architect in accordan e with Section 9 8 § 81 4 The term "day" as used in the Contract Documents shall mean calendar day unless c therwise specs ica y defined § 8 2 PROGRESS AND COMPLETION § 8 21 Tune limits stated in the Contract Documents are of the essence of the Contract By xe uting the Agreement the Contractor confirms that the Contract Time is a reasonable period for performing the or § 8 2 2 The Contractor shall not knowingly, except by agreement or instruction of the Ownt r in writing, p em tturely commence operations on the site or elsewhere prior to the effective date of insurance requij ed by Article I to be furmshed by the Contractor and Owner The date of commencement of the Work shall not be c ianged by the effective date of such insurance § 8 2 3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Subs mtlal°Ca pletro within the Contract Time § 8 3 DELAYS AND EXTENSIONS OF TIME § 8 31 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neg�.. the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner raby changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidablest�alties o the causes beyond the Contractor's control, or by delay authorized by the Owner pending media ott'n and r� ario , o by other causes that the Architect determines may justify delay, then the Contract Time sh 1 b tended by C e Order for such reasonable time as the Architect may determine § 8 3 2 Claims relating to time shall be made in accordance with applicable provisions of Article 15 § 8 3 3 This Section 8 3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents ARTICLE 9 PAYMENTS AND COMPLETION § 91 CONTRACT SUM The Contract Sum is stated in the Agreement and, including authorized adjustments, is the ota ( amount p yab y the Owner to the Contractor for performance of the Work under the Contract Documents § 9 2 SCHEDULE OF VALUES Where the Contract is based on a stipulated sum or Guaranteed Maximum Price, the Contr ctor shall submit to the Architect, before the first Application for Payment, a schedule of values allocating the entik--eontract-Sum -to various portions of the Work and prepared in such form and supported by such data to substantiate its accuracy as the Architect may require This schedule, unless objected to by the Architect, shall be used as is, F-review, the Contractor's Applications for Payment § 9 3 APPLICATIONS FOR PAYMENT § 9 31 At least ten days before the date established for each progress payment, the Contrac r iConfrac the Architect an itemized Application for Payment prepared in accordance with the schedule o va d under Section 9 2, for completed portions of the Work Such application shall be notarized, if req ire ed by such data substantiating the Contractor's right to payment as the Owner or Architect may r qu pies of requisitions from Subcontractors and material suppliers, and shall reflect retamage if prove ed Documents AIA Document A201" - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This ALA Document is protected by U 3 Copyright Law and International '24 Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 9 31 1 As provided in Section 7 3 9, such applications may include requests for payment on account of changes in the Work that have been properly authorized by Construction Change Directives, or by interim determinations of the Architect, but not yet included in Change Orders § 9 31 2 Applications for Payment shall not include requests for payment for portions of the Work for which the Contractor does not intend to pay a Subcontractor or material supplier, unless such Work has en performed by others whom the Contractor intends to pay § 9 3 2 Unless otherwise provided m the Contract Documents, payments shall be made on co t of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Wor I approve in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off he-&i at- a­locat�on agreed upon in writing Payment for materials and equipment stored on or off the site shall a ondmoned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the ON meqs title to such materials and equipment or otherwise protect the Owner's interest, and shall include the co is qf applicable insurance, storage and transportation to the site for such materials and equipment stored o e site § 9 3 3 The Contractor warrants that title to all Work covered by an Application for Paymer t wi 11 pass to e lfrocates wner no later than the time of payment The Contractor further warrants that upon submittal of a Al placation Payment all Work for which Certifi for Payment have been previously issued and pa e s receive the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and le of liens, lai s, security interests or encumbrances in favor of the Contractor, Subcontractors, material sup lie , or other persons or entities making a claim by reason of having provided labor, materials and equipment relate g t thre § 9 4 CERTIFICATES FOR PAYMENT § 9 41 The Architect will, within seven days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines properly due, or notify the Contractor and Owner in writing of the Architect's reasons for withholding ce ration in whole or in part as provided in Section 9 5 1 § 9 4 2 The issuance of a Certificate for Payment will constitute a representation by the Arc to the Owner, based on the Architect's evaluation of the Work and the data comprising the Application fo ent, to i he best of the Architect's knowledge, information and belief, the Work has progressed to the point in i t ddaand iat the quality of the Work is in accordance with the Contract Documents The foregoing representations are subs t to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results o subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect The issuance of a Certificate for Payb her constitute a representation that the Contractor is entitled to payment m the amount certified e suanc of a Certificate for Payment will not be a representation that the Architect has (1) made exh utin o oon- site inspections to check the quality or quantity of the Work, (2) reviewed construction me c qu , sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors ppli s and other data requested by the Owner to substa ntiate the Contractor's right to payment, or (4a ion to ascertain how or for what purpose the Contractor has used money previously paid on acco t ct um § 9 5 DECISIONS TO WITHHOLD CERTIFICATION § 9 51 The Architect may withhold a Certificate for Payment in whole or in part, to the ext tFreasonably neces to protect the Owner, if in the Architect's opinion the representations to the Owner required by Section 9 4 2 cannot be made If the Architect is unable to certify payment in the amount of the Application, the Architect w411 -note e Contractor and Owner as provided in Section 9 4 1 If the Contractor and Architect cannot agre n a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for whlc a tect is a e make such representations to the Owner The Architect may also withhold a Certificate for a ent or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Pa ent reviously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss r hich the Contractor is responsible, including loss resulting from acts and omissions described in Section 3 3 2, bec se of 1 defective Work not remedied, 2 third party claims filed or reasonable evidence indicating probable filing of ch c aims u ess security acceptable to the Owner is provided by the Contractor, AIA Document A201- - 2007 Copyright 9) 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International 25 Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) 3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment, 4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum, 5 damage to the Owner or a separate contractor, 6 reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages the anticipated delay, or 7 repeated failure to carry out the Work in accordance with the Contract Docu ner ts § 9 5 2 When the above reasons for withholding certification are removed, certification will be ma a for amounts previously withheld ---- § 9 5 3 If the Architect withholds certification for payment under Section 9 5 13, the Owne mE y, at its sole option, issue jomt checks to the Contractor and to any Subcontractor or material or equipment supl he to whom the Contractor failed to make payment for Work properly performed or material or equipment sui bly delivered If the Owner makes payments by joint check, the Owner shall notify the Architect and the Arclut c 11 reflect such payment on the next Certificate for Payment § 9 6 PROGRESS PAYMENTS § 9 61 After the Architect has issued a Certificate for Payment, the Owner shall make payn ent in the ma er and within the time provided in the Contract Documents, and shall so notify the Architect § 9 6 2 The Contractor shall pay each Subcontractor no later than seven days after receipt o a en o e Owner the amount to which the Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of the Subcontractor's portion of the Work The Contractor shal<ropaid ate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - rs in a si manner § 9 6 3 The Architect will, on request, fumish to a Subcontractor, if practicable, informatio rcen es of completion or amounts applied for by the Contractor and action taken thereon by the Arclu ner on account of portions of the Work done by such Subcontractor § 9 6 4 The Owner has the right to request written evidence from the Contractor that the Co prop aid Subcontractors and material and equipment suppliers amounts paid by the Owner to the Csubcontracte Work If the Contractor fails to furmsh such evid ence within seven days, the Owner shall have the right to contact Subcontractors to ascertain whether they have been properly paid Neither the Owner nor Archit h have an obligation to pay or to see to the payment of money to a Subcontractor, except as may othe se be requir by la § 9 6 5 Contractor payments to material and equipment suppliers shall be treated in a mane si lar to th t p vi in Sections 9 6 2, 9 6 3 and 9 6 4 § 9 6 6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of a Project y e Owner shall not constitute acceptance of Work not in accordance with the Contract Docu nt § 9 6 7 Unless the Contractor provides the Owner with a payment bond in the full penal su ftthe-eontract Su , payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or, , contract with the Contractor for which payment was made by the Owner Notting contained he shall re uire money to be placed in a separate account and not commingled with money of the Contractor hall eate any fiduciary liability or tort liability on the part of the Contractor for breach of trust or shall en tle y person or entity to an award of punitive damages against the Contractor for breach of the requirements oft s p ovision § 9 7 FAILURE OF PAYMENT If the Architect does not issue a Certificate for Payment, through no fault of the Contractor wi n seven days after receipt of the Contractor's Application for Payment, or if the Owner does not pay the Con actor wi in seven ays after the date established in the Contract Documents the amount certified by the Architect r- rded b b�ndmg dispute resolution, then the Contractor may, upon seven additional days' written notice to the Owner and Architect, AIA Document A201- - 2007 Copyright 9) 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal 26 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) stop the Work until payment of the amount owing has been received The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of shut- down, delay and start-up, plus interest as provided for in the Contract Documents § 9 8 SUBSTANTIAL COMPLETION § 9 81 Substantial Completion is the stage in the progress of the Work when the Work or d i ated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can ccdpy or utilize the Work for its intended use § 9 8 2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Archit t a omprehen "*e-"" items to be completed or corrected prior to final payment Failure to include an item on sue li t does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Doc me is § 9 8 3 Upon receipt of the Contractor's list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete If the Architect's inspection discloses tem, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Cor tract Doci W its so that the Owner can occupy or utilize the Work or designated portion thereof for its intends us , the Cont act r shall, before issuance of the Certificate of Substantial Completion, complete or correct suc its n upon notification by the Architect In such case, the Contractor shall then submit a request for another inspec - Jon by the Architect to determine Substantial Completion § 9 8 4 When the Work or designated portion thereof is substantially complete, the Archite 1 ear a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate Warranties required by the Contract Documents shall commence on the date of Substantial C etion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substan omple n § 9 8 5 The Certificate of Substantial Completion shall be submitted to the Owner and Con ac r their wn n acceptance of responsibilities assigned to them in such Certificate Upon such acceptance an nsent e any, the Owner shall make payment of retamage applying to such Work or designated portion there uch paym t shall be adjusted for Work that is mcomplete or not in accordance with the requirements of the Contract Do unients § 9 9 PARTIAL OCCUPANCY OR USE § 9 91 The Owner may occupy or use any completed or partially completed portion of the Wor�,Awiry,�ge when such portion is designated by separate agreement with the Contractor, provided such occupape or use is copsente to by the insurer as required under Section 113 1 5 and authorized by public authorities hag ris i on v the Project Such partial occupancy or use may commence whether or not the portion is substa tia y comple e, ovi the Owner and Contractor have accepted in writing the responsibilities assigned to each of a for paym nts, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, d ave agree in writing concerning the period for correction of the Work and commencement of warranties re ired by th C ntract Documents When the Contractor considers a portion substantially complete, the Contract o s 11 re are submit a list to the Architect as provided under Section 9 8 2 Consent of the Contractor to artial occupancy or use shall not be unreasonably withheld The stage of the progress of the Work shall be determ ed°by wnttemagreemen between the Owner and Contractor or, if no agreement is reached, by decision of the Architect § 9 9 2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architec all jomtl inspect the area to be occupied or portion of the Work to be used in order to determine and record th con otno the Work § 9 9 3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of t e ork shall not constitute acceptance of Work not complying with the requirements of the Contract Docurr en § 910 FINAL COMPLETION AND FINAL PAYMENT § 9 10 1 Upon receipt of the Contractor's written notice that the Work is ready for final ins n.andaccep ance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when the AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal 27 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on -site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Section 9 10 2 as precedent to th ntractor's being entitled to final payment have been fulfilled § 910 2 Neither final payment nor any remaining retained percentage shall become due unt 1 th Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and equipment, and other indebte ness connects with the Work for which the Owner or the Owner's property might be responsible or encu be r d4less- amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that u ance required by the Contract Documents to remain in force after final payment is currently in effect and will n t b canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a wn n tement that the Contractor knows of no substantial reason that the insurance will not be renewable to coverie period required by the Contract Documents, (4) consent of surety, if any, to final payment and (5), if required a Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers o lie , claims, sec rity interests or encumbrances ansmg out of the Contract, to the extent and in such form as ma be designate( by the Owner If a Subcontractor refuses to famish a release or waiver required by the Owner, the Co tractor m y rnish a bond satisfactory to the Owner to indemnify the Owner against such lien If such lien rema s satisfied aft fu payments are made, the Contractor shall rend to the Owner all money that the Owner ma be compe ed to ay in discharging such lien, including all costs and reasonable attorneys' fees § 910 3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the Owner shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted I remaining balance for Work not fully completed or corrected is less than retainage stipulated in ontract Documents, and if bonds have been f irmshed, the written consent of surety to payment of alanc a for i hat portion of the Work fully completed and accepted shall be submitted by the Contractor to a tect prior t certification of such payment Such payment shall be made under terms and conditions gove fma a t, except that it shall not constitute a waiver of claims § 910 4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from 1 liens, Claims, security interests or encumbrances ansmg out of the Contract and unsettled, 2 failure of the Work to comply with the requirements of the Contract Documents, 3 terms of special warranties required by the Contract Documents § 910 5 Acceptance of final payment by the Contractor, a Subcontractor or material supple s 11 consti to wa r of claims by that payee except those previously made in writing and identified by that paye as unsettled t the ime of final Application for Payment ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY § 101 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precauti ons-and-programs in connection with the performance of the Contract § 10 2 SAFETY OF PERSONS AND PROPERTY § 10 21 The Contractor shall take reasonable precautions for safety of, and shall provide r2Sub- ction to prevent damage, injury or loss to 1 employees on the Work and other persons who may be affected thereby, materials 2 the Work and materials and equipment to be incorporated therem, whether r off the site, under care, custody or control of the Contractor or the Contractor's Su Sub - subcontractors, and 3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, w s, roadways, structures and utilities not designated for removal, relocation or Alie of construction AIA Document A201 - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U 3 Copyright Law and International 20 Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal o penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 10 2 2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, mjury or loss § 10 2 3 The Contractor shall erect and maintain, as required by existing conditions and per brn ance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other m DD arni ngs against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utiliti s § 10 2 4 When use or storage of explosives or other hazardous materials or equipment or umisuaI meirioas are necessary for execution of the Work, the Contractor shall exercise utmost care and carry A su tivities -under supervision of properly qualified personnel § 10 2 5 The Contractor shall promptly remedy damage and loss (other than damage or loss ed under property insurance required by the Contract Documents) to property referred to in Sections 10 2 12 4010 2 13 caused in whole or in part by the Contractor, a Subcontractor, a Sub - subcontractor, or anyone directl o directly employed by any of them, or by anyone for whose acts they may be liable and for which the Contract r is responsib a der Sections 10 2 12 and 10 2 1 3, except damage or loss attributable to acts or omissions of O er or chi ct or anyone directly or indirectly employed by either of them, or by anyone for whose acts elth o them ma be iable, and not attributable to the fault or negligence of the Contractor The foregoing obligations f Contrac r e in addition to the Contractor's obligations under Section 3 18 § 10 2 6 The Contractor shall designate a responsible member of the Contractor's orgamzat t site ose du shall be the prevention of accidents This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect § 10 2 7 The Contractor shall not permit any part of the construction or site to be loaded so as to caused a or create an unsafe condition § 10 2 8 INJURY OR DAMAGE TO PERSON OR PROPERTY m m If either party suffers �ury or damage to person or property because of an act or omission a other r o others for whose acts such party is legally responsible, written notice of such injury or damage, whe he or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery tice shall provide sufficient detail to enable the other party to investigate the matter § 10 3 HAZARDOUS MATERIALS § 10 31 The Contractor is responsible for compliance with any requirements included in thrbqfi tract Doc eiatyely regarding hazardous materials If the Contractor encounters a hazardous material or substa a r sedgy Contract Documents and if reasonable precautions will be inadequate to prevent foreseeabl ily m� or to persons resulting from a material or substance, including but not limited to asbestos or p orinated ip (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing th c dltlon, 1 e stop Work in the affected area and report the condition to the Owner and Architect in wrltl g L__] § 10 3 2 Upon receipt of the Contractor's written notice, the Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor an , e°event°su li material or substance is found to be present, to cause it to be rendered harmless Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Arcltect the names an uahfications of persons or entities who are to perform tests verifying the presence or absence of such maters or substance or who are to perform the task of removal or safe containment of such material or substance T Cop ctor and e Architect will promptly reply to the Owner in writing stating whether or not either has reas ab � ob�ecrion to the persons or entities proposed by the Owner If either the Contractor or Architect has an oboe tlo to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor and the c lime ect have no reasonable objection When the material or substance has been rendered harmless, Work in thffected area shall resume upon written agreement of the Owner and Contractor By Change Order, the Contr ct shall be extended appropriately and the Contract Sum shall be increased m the amount of the Contr ctor s reasons e additional costs of shut -down, delay and start-up AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International 2 9 Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 10 3 3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, Architect, Architect's consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10 3 1 and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruc ion of tangible property (other than the Work itself), except to the extent that such damage, loss or expense is due to dic fault or negligence of the party seeking indemnity § 10 3 4 The Owner shall not be responsible under this Section 10 3 for materials or substa es i a ontractor rings to the site unless such materials or substances are required by the Contract Documents The O er shal responsible for materials or substances required by the Contract Documents, except to the c xtei it of the Contractor's fault or negligence in the use and handling of such materials or substances § 10 3 5 The Contractor shall indemnify the Owner for the cost and expense the Owner incurs ) for remediation of a material or substance the Contractor brings to the site and negligently handles, or (2) whe r6d ie Contractor fails to perform its obligations under Section 10 3 1, except to the extent that the cost and expense ire ilue to the Jw ier's fault or negligence § 10 3 6 If, without negligence on the part of the Contractor, the Contractor is held liable by a g vernmen ag cy for the cost of remediation of a hazardous material or substance solely by reason of performin W rk as req a by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense th eb § 10 4 EMERGENCIES In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss Additional compensation or extension of time claimed by the Contrac on account of an emergency shall be determined as provided in Article 15 and Article 7 ARTICLE 11 INSURANCE AND BONDS § 11 1 CONTRACTOR'S LIABILITY INSURANCE § 11 1 1 The Contractor shall purchase from and maintain in a company or compames lawfdlly.Authonz �dc business in the jurisdiction in which the Project is located such insurance as will protect the Contr clal set forth below which may anse out of or result from the Contractor's operations and completed operations er the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or b a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable 1 Claims under workers' compensation, disability benefit and other similar emp yee benefit cts tha are applicable to the Work to be performed, 2 Claims for damages because of bodily injury, occupational sickness or disea e, r death o the Contractor's employees, 3 Claims for damages because of bodily injury, sickness or disease, or death o person o er an the Contractor's employees, 4 Claims for damages insured by usual personal mjury liability coverage, 5 Claims for damages, other than to the Work itself, because of injury to or de truction of tangible property, including loss of use resulting therefrom, 6 Claims for damages because of bodily injury, death of a person or property damage ansing out of ownership, maintenance or use of a motor vehicle, 7 Claims for bodily injury or property damage arising out of completed operations nd 8 Claims involving contractual liability insurance applicable to the Contractor's bli ons under Section 3 18 § 1112 The insurance required by Section 11 1 I shall be written for not less than limits o lia lity specified in the Contract Documents or required by law, whichever coverage is greater Coverages, whethe tten on an occurrence or claims -made basis, shall be maintained without interruption from the date of o encement of the Work until the date of final payment and termination of any coverage required to be maint e a er ma paymen , and, with respect to the Contractor's completed operations coverage, until the expiration o penod_for -correction AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal 30 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) of Work or for such other period for maintenance of completed operations coverage as specified in the Contract Documents § 1113 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work and thereafter upon renewal or replacement of each required policy of insurance These certificates and the insurance policies required by this Section 11 1 shall contain a provision that coverages aff ndt d under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has beei k given to the Owner An additional certificate evidencing continuation of liability coverage, including coverage for om leted operations, shall be submitted with the final Application for Payment as required by Section 9 10 2 an the eafter upon renewal or replacement of such coverage until the expiration of the time required by Section 11 12. Informa ion concerning reduction of coverage on account of revised lmuts or claims paid under the General Aggrej ate, or- both - ,.shall -b furnished by the Contractor with reasonable promptness § 1114 The Contractor shall cause the commercial liability coverage required by the Contr ict ocuments to include (1) the Owner, the Architect and the Architect's consultants as additional insureds for clanns caused in whole or in part by the Contractor's negligent acts or omissions during the Contractor's operations, an the Owner as an additional insured for claims caused in whole or in part by the Contractor's negligent acts c r or ssions d i _n_nJ the Contractor's completed operations § 112 OWNER'S LIABILITY INSURANCE The Owner shall be responsible for purchasing and maintaining the Owner's usual liability ance § 113 PROPERTY INSURANCE r I § 113 1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk "all -risk" or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Con Modifications and cost of materials supplied or installed by others, comprising total value for the entire Pw ect at the site on a replacement cost basis without optional deductibles Such property insurance shall b intaine unless otherwise provided in the Contract Documents or otherwise agreed in writing by all rsons ntitie w are beneficiaries of such insurance, until final payment has been made as provided in Secti n or until no ers n or entity other than the Owner has an insurable interest in the property required by this Sec 1 3 to ove ed whichever is later This insurance shall include interests of the Owner, the Contractor, Subcontracto d Sub - subcontractors in the Project § 113 1 1 Property insurance shall be on an "all -risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage mcludi gz out duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, w dstorm, fals work, testing and startup, temporary buildings and debris removal including demolition occasions by n orc ent ny applicable legal requirements, and shall cover reasonable compensation for Architect's and Co tractor's ervi es and expenses required as a result of such insured loss § 113 1 2 If the Owner does not intend to purchase such property insurance required by the Coi itract an d th 11 of the coverages in the amount described above, the Owner shall so inform the Contractor in i mti g nor to commencement of the Work The Contractor may then effect insurance that will protect the interests of the Contractor, Subcontractors and Sub - subcontractors in the Work, and by appropriate Chang rthe-cost°thereo shall be charged to the Owner If the Contractor is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above, without so notifying the Contractor in writing, then the Owner-shall-bearall reasonable costs properly attributable thereto § 113 1 3 If the property insurance requires deductibles, the Owner shall pay costs not cove d cause of 2such deductibles § 11 31 4 This property insurance shall cover portions of the Work stored off the site, and so ortions of in transit § 113 1 5 Partial occupancy or use in accordance with Section 9 9 shall not commence until ance.com or companies providing property insurance have consented to such partial occupancy or use by endorsement or AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA' Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal 31 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) otherwise The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance § 113 2 BOILER AND MACHINERY INSURANCE The Owner shall purchase and maintain boiler and machinery insurance required by the Co tr t Documents or by law, which shall specifically cover such insured objects during installation and until final a celtance by the Owner, this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub-sub,-on ractors in the Work, and the Owner and Contractor shall be named insureds § 113 3 LOSS OF USE INSURANCE The Owner, at the Owner's option, may purchase and maintain such insurance as will insu fillt wner against loss of use of the Owner's property due to fire or other hazards, however caused The Owner w l rights of ac tion against the Contractor for loss of use of the Owner's property, including consequential loss o fire or other hazards however caused § 113 4 If the Contractor requests in writing that insurance for risks other than those descri ed ierem or c ME special causes of loss be included in the property insurance policy, the Owner shall, if poss ble include si ich insurance, and the cost thereof shall be charged to the Contractor by appropriate Change 01 der § 113 5 If during the Project construction period the Owner insures properties, real or pers al r both, a or djacent to the site by property insurance under policies separate from those insuring the Project, or; a t`ft yin property insurance is to be provided on the completed Project through a policy or policies ather than_tl�ose urine the Project during the construction period, the Owner shall waive all rights in accordance with the terms of Section 113 7 for damages caused by fire or other causes of loss covered by this separate property insurance All separate policies shall provide this waiver of subrogation by endorsement or otherwise § 113 6 Before an exposure to loss may occur, the Owner shall file with the Contractor a copy of pollc t includes insurance coverages required by this Section 113 Each policy shall contain all ge ally a %al h;a le conditions, definitions, exclusions and endorsements related to this Project Each policy shl provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduc til to t 30 da s' prior written notice has been given to the Contractor § 113 7 WAIVERS OF SUBROGATION The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub - subcontractors, agents and employees, each of the other, and (2) the Architect, Architect's consu ts, eparate contractors described m Article 6, if any, and any of their subcontractors, sub - subcontractors gents and a ployee , for damages caused by fire or other causes of loss to the extent covered by property insuran e o me urs an o this Section 113 or other property insurance applicable to the Work, except such rights as ey ave to ce ds o such insurance held by the Owner as fiduciary The Owner or Contractor, as appropriate, s all require of e Architect, Architect's consultants, separate contractors described in Article 6, if any, and st bcontracto s, b- subcontractors, agents and employees of any of them, by appropriate agreements, written er legally r u d for validity, similar waivers each in favor of other parties enumerated herem The policies shal pro vide such ai ers of subrogation by endorsement or otherwise A waiver of subrogation shall be effective as to person or entity even though that person or entity would otherwise have a duty of indemnification, contractual o therwise; didnot-pa the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged § 113 8 A loss insured under the Owner's property insurance shall be adjusted by the Ownfdca ry and ma payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to ts of any applicable mortgagee clause and of Section 11 3 10 The Contractor shall pay Subcontract shares of insurance proceeds received by the Contractor, and by appropriate agreements, written wh equired for validity, shall require Subcontractors to make payments to their Sub - subcontractors in sem§ 11 3 9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occ insure oss, give bond for proper performance of the Owner's duties The cost of required bonds shall proceeds received as fiduciary The Owner shall deposit in a separate account proceeds so received, which the AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This Ale Document is protected by U 8 Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal 32 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) Owner shall distribute in accordance with such agreement as the parties in interest may reach, or as determmed in accordance with the method of binding dispute resolution selected in the Agreement between the Owner and Contractor If after such loss no other special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged property shall be performed by the Contractor after notification of a Change in the Work in accordance with Article 7 § 113 10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers t nlei s one of the parties in interest shall object in writing witlun five days after occurrence of loss to the Owner's exer ise of this power, if such objection is made, the dispute shall be resolved in the manner selected by the Owner and C )ntr ictor as the method of binding dispute resolution in the Agreement If the Owner and Contractor have selected irbitration as a me o of binding dispute resolution, the Owner as fiduciary shall make settlement with insurers o , in e•case-of_a-disput over distribution of insurance proceeds, in accordance with the directions of the arbitrators - § 114 PERFORMANCE BOND AND PAYMENT BOND § 114 1 The Owner shall have the right to require the Contractor to furmsh bonds covering faithful performance of the Contract and payment of obligations ansing thereunder as stipulated in bidding requirei ifeff s or specifically required in the Contract Documents on the date of execution of the Contract § 114 2 Upon the request of any person or entity appearing to be a potential beneficiary of bow Is covering pa tinent of obligations ansing under the Contract, the Contractor shall promptly furnish a copy of tf. e bonds or sh 11 authorize a copy to be furnished ARTICLE 12 UNCOVERING AND CORRECTION OF WORK § 121 UNCOVERING OF WORK § 121 1 If a portion of the Work is covered contrary to the Architect's request or to requirements specifically expressed in the Contract Documents, it must, if requested in writing by the Architect, be uncovered for the Architect's examination and be replaced at the Contractor's expense without change in the Contract Ti § 121 2 If a portion of the Work has been covered that the Architect has not specifically re u sted to ins no to its being covered, the Architect may request to see such Work and it shall be uncovered y t ontractor I su h Work is in accordance with the Contract Documents, costs of uncovering and replacement shaUbby ap iat Change Order, be at the Owner's expense If such Work is not in accordance with the Contract n Docum ets, such costs and the cost of correction shall be at the Contractor's expense unless the condition was caused by the n © er or a separate contractor in which event the Owner shall be responsible for payment of such costs § 12 2 CORRECTION OF WORK § 12 21 BEFORE OR AFTER SUBSTANTIAL COMPLETION The Contractor shall promptly correct Work rejected by the Architect or failing to conform o requ me is the Contract Documents, whether discovered before or after Substantial Completion and w e r or not bn ate installed or completed Costs of correcting such rejected Work, including additional es in an inspectiol s, th cost of uncovering and replacement, and compensation for the Architect's services and expense in de necess thereby, shall be at the Contractor's expense § 12 2 2 AFTER SUBSTANTIAL COMPLETION § 12 2 21 In addition to the Contractor's obligations under Section 3 5, if, within one year a er-the°d Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Section 9 9 1, or by terns of an applicable special warranty required by the Contragt.Decuinents, any of the Work is found to be not in accordance with the requirements of the Contract Documpn s, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the O femptly previously given the Contractor a written acceptance of such condition The Owner shall give such not cafter discovery of the condition During the one -year period for correction of Work, if the Owne fnotify the Contractor and give the Contractor an opportunity to make the correction, the Owner waiv s hts to require correction by the Contractor and to make a claim for breach of warranty If the Contractor irrect nonconforming Work within a reasonable time during that period after receipt of notice fro wner or Architect, the Owner may correct it in accordance with Section 2 4 AIA Document A201 - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document as protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe civil and criminal 33 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 12 2 2 2 The one -year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual completion of that portion of the Work § 12 2 2 3 The one -year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Section 12 2 § 12 2 3 The Contractor shall remove from the site portions of the Work that are not in acco rdai ce with the requirements of the Contract Documents and are neither corrected by the Contractor nor ac ept d by the Owner § 12 2 4 The Contractor shall bear the cost of correcting destroyed or damaged construction leted-o partially completed, of the Owner or separate contractors caused by the Contractor's cone io or removal of Work that is not in accordance with the requirements of the Contract Documents § 12 2 5 Nothing contained in this Section 12 2 shall be construed to establish a period of lunita ion with respect to other obligations the Contractor has under the Contract Documents Establishment of the o neGontractor ar period for correction of Work as described in Section 12 2 2 relates only to the specific obligation of o c rrect the Work, and has no relationship to the time within which the obligation to comply with t ntract Dc currents may be sought to be enforced, nor to the time within which proceedings may be commenc to establish e Contractor's liability with respect to the Contractor's obligations other than specifically to or o ct the W k § 12 3 ACCEPTANCE OF NONCONFORMING WORK If the Owner prefers to accept Work that is not in accordance with the requirements of the a ac oc me is Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable Such adjustment shall be effected whether or not final payment has been made ARTICLE 13 MISCELLANEOUS PROVISIONS § 131 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located except i�f th p ies h ve selected arbitration as the method of binding dispute resolution, the Federal Arbitration Ac shams govern Secti n 154 § 13 2 SUCCESSORS AND ASSIGNS § 13 21 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to covenants, agreements and obligations contained in the Contract Documents Except as provided in Section 13 2 2, neither party to the Contract shall assign the Contract as a whole without wntt -co ent of the other If either party attempts to make such an assignment without such consent, that party s 1 neverthe s rema legally responsible for all obligations under the Contract § 13 2 2 The Owner may, without consent of the Contractor, assign the Contract to a lender ro iding con truc n financing for the Project, if the lender assumes the Owner's rights and obligations under th C ntract Do m nts The Contractor shall execute all consents reasonably required to facilitate such assignment § 13 3 WRITTEN NOTICE Written notice shall be deemed to have been duly served if delivered in person to the individual; to°a- member o firm or entity, or to an officer of the corporation for which it was intended, or if delivered at, or sent by registered or certified mail or by couner service providing proof of delivery to, the last business address known to the -party giving notice § 13 4 RIGHTS AND REMEDIES § 13 41 Duties and obligations imposed by the Contract Documents and rights and remedie av ilable thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies othe ise mposed or available by law § 13 4 2 No action or failure to act by the Owner, Architect or Contractor shall constitute a 1 vaiver of a rig I or auty afforded them under the Contract, nor shall such action or failure to act constitute approval ofto�acqurescenceni breach there under, except as may be specifically agreed in writing AIA Document A201- - 2007 Copyright © 1911 1915 1916 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treat 'lea Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal 34 penalties and 7111 be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 13 5 TESTS AND INSPECTIONS § 13 51 Tests, inspections and approvals of portions of the Work shall be made as required by the Contract Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of public authorities Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with appropriate public authority, and shall bear all related costs of tests, inspections and approvals The Contracto sh Il give the Architect timely notice of when and where tests and inspections are to be made so that the Architect nay be present for such procedures The Owner shall bear costs of (1) tests, inspections or approvals that do not be om requirements until after bids are received or negotiations concluded, and (2) tests, inspections or approvals wt. ere uil ding codes or applicable laws or regulations prohibit the Owner from delegatmg their cost to the Contrac r § 13 5 2 If the Architect, Owner or public authorities having jurisdiction determine that po on of the Work require additional testing, inspection or approval not included under Section 13 5 1, the Architect 11, upon written authorization from the Owner, instruct the Contractor to make arrangements for such addrtiona testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely noh t(i the Architect of when and where tests and inspections are to be made so that the Architect may be present r si ich procec are. Such costs, except as provided in Section 13 5 3, shall be at the Owner's expense § 13 5 3 If such procedures for testing, inspection or approval under Sections 13 5 1 and 13 5 2 - eveal faili ire f the portions of the Work to comply with requirements established by the Contract Documents, 11 4osts made ne ssary by such failure including those of repeated procedures and compensation for the Architect' se man xp se shall be at the Contractor's expense § 13 5 4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect § 13 5 5 If the Architect is to observe tests, inspections or approvals required by the Contract Doc nts, the Architect will do so promptly and, where practicable, at the normal place of testing § 13 5 6 Tests or inspections conducted pursuant to the Contract Documents shall be made p tly to d unreasonable delay in the Work § 13 6 INTEREST Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such rate as the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing fro m to time at the place where the Project is located § 13 7 TIME LIMITS ON CLAIMS The Owner and Contractor shall commence all claims and causes of action, whether in con ac , tort, brea h o warranty or otherwise, against the other ansing out of or related to the Contract in accord ce ith there uir ents of the final dispute resolution method selected in the Agreement within the time period spe ifi d by apple abl law, but in any case not more than 10 years after the date of Substantial Completion of the Wor T e Owner d Contractor waive all claims and causes of action not commenced in accordance with this Section 13 7 ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT § 141 TERMINATION BY THE CONTRACTOR § 141 1 The Contractor may terminate the Contract if the Work is stopped for a period of 3nallWork ays through no act or fault of the Contractor or a Subcontractor, Sub - subcontractor or their agees or an other persons or entities performing portions of the Work under direct or mdirect contract ctor, for any of the following reasons 1 Issuance of an order of a court or other public authority having jurisdiction Mat Work to be stopped, 2 An act of government, such as a declaration of national emergency that req o be stopped, AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This ALA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal 35 penalties and will be proaecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) 3 Because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Section 9 4 1, or because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents, or 4 The Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable evidence as required by Section 2 2 1 § 141 2 The Contractor may terminate the Contract if, through no act or fault of the Contra Jptins a Subcontractor, Sub - subcontractor or their agents or employees or any other persons or entities performing ns of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or rote of the entire Wo rk by the Owner as described in Section 14 3 constitute in the aggregate more than 100 perce e tots num er o days scheduled for completion, or 120 days in any 365 -day period, whichever is less § 141 3 If one of the reasons described in Section 14 1 1 or 14 12 exists, the Contractor mz y, u on seven days' written notice to the Owner and Arclutect, terminate the Contract and recover from the Ow ier ayment for Work executed, including reasonable overhead and profit, costs incurred by reason of such termination, and damages § 141 4 If the Work is stopped for a period of 60 consecutive days through no act or fault o 7 tht Contractor oi a Subcontractor or their agents or employees or any other persons performing portions of the Wok under Willi ct with the Contractor because the Owner has repeatedly failed to fulfill the Owner's obligati ns i mder the Goill ract Documents with respect to matters important to the progress of the Work, the Contractor m ay, ipon sevei i ad litional days' written notice to the Owner and the Architect, terminate the Contract and recover fro the Owner as p vided in Section 14 13 § 14 2 TERMINATION BY THE OWNER FOR CAUSE § 14 21 The Owner may terminate the Contract if the Contractor 1 repeatedly refuses or fails to supply enough properly skilled workers or proper materials, 2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors, 3 repeatedly disregards applicable laws, statutes, ordinances, codes, rules and ulatio , r la 1 orders of a public authority, or 4 otherwise is guilty of substantial breach of a provision of the Contract Docum § 14 2 2 When any of the above reasons exist, the Owner, upon certification by the Initial Decision Maker sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner an after giving the Contractor and the Contractor's surety, if any, seven days' written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety 1 Exclude the Contractor from the site and take possession of all materials, eqrieUpon ols, d construction equipment and machinery thereon owned by the Contractor, 2 Accept assignment of subcontracts pursuant to Section 5 4, and 3 Finish the Work by whatever reasonable method the Owner may deem expe tten request of the Contractor, the Owner shall furnish to the Contractor a details g o th costs incurred by the Owner in finishing the Work § 14 2 3 When the Owner terminates the Contract for one of the reasons stated in Section 1 2 1, the Contractor shall not be entitled to receive further payment until the Work is finished § 14 2 4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including co pensation -€ the Architect's services and expenses made necessary thereby, and other damages incurred by Owner and not expressly waived, such excess shall be paid to the Contractor If such costs and damages exc Meo the Contractor shall pay the difference to the Owner The amount to be paid to the Contract r may be, shall be certified by the Initial Decision Maker, upon application, and this obligati n f survive termination of the Contract § 14 3 SUSPENSION BY THE OWNER FOR CONVENIENCE § 14 31 The Owner may, without cause, order the Contractor in writing to suspend, delay o in whole or in part for such period of time as the Owner may determine AIA Document A201" - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963, 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA` Document is protected by U 3 Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal 36 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 14 3 2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section 14 3 1 Adjustment of the Contract Sum shall include profit No adjustment shall be made to the extent 1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible, or 2 that an equitable adjustment is made or denied under another provision oft h —C-i intract § 14 4 TERMINATION BY THE OWNER FOR CONVENIENCE § 14 41 The Owner may, at any time, terminate the Contract for the Owner's convenience d ithout cause § 14 4 2 Upon receipt of written notice from the Owner of such termination for the Owner's co vemene , Contractor shall 1 cease operations as directed by the Owner in the notice, 2 take actions necessary, or that the Owner may direct, for the protection and I ires rvation of the Work, and 3 except for Work directed to be performed prior to the effective date of terms n stated in the notice, terminate all existing subcontracts and purchase orders and enter mtc no ftirther sul icor acts and purchase orders § 14 4 3 In case of such termination for the Owner's convenience, the Contractor shall be ex tith d to receive p yment for Work executed, and costs incurred by reason of such termination, along with reasonabl ov rhead an prc fit on the Work not executed ARTICLE 15 CLAIMS AND DISPUTES § 151 CLAIMS § 151 1 DEFINITION A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, �w�© er relief with respect to the terms of the Contract The term "Claim" also includes other disputes an afters i question between the Owner and Contractor arising out of or relating to the Contract The r onsibi o substantiate Claims shall rest with the party making the Claim § 1512 NOTICE OF CLAIMS Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the ri Decision Maker with a copy sent to the Architect, if the Architect is not serving as the Initial Decision Maker Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichev -later § 1513 CONTINUING CONTRACT PERFORMANCE Pending final resolution of a Claim, except as otherwise agreed in writing or as provided Se ion 9 7 d icl 14, the Contractor shall proceed diligently with performance of the Contract and the Owne sh 11 continu to e payments in accordance with the Contract Documents The Architect will prepare Change rd rs and iss e Certificates for Payment in accordance with the decisions of the Initial Decision Maker § 1514 CLAIMS FOR ADDITIONAL COST If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notic asprovided- herem-sha be given before proceeding to execute the Work Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10 4 § 151 5 CLAIMS FOR ADDITIONAL TIME § 1515 1 If the Contractor wishes to make a Claim for an increase in the Contract Time, wr tte otice as provided herem shall be given The Contractor's Claim shall include an estimate of cost and of prob le ffect of delay on progress of the Work In the case of a continuing delay, only one Claim is necessary § 151 5 2 If adverse weather conditions are the basis for a Claim for additional time, such lai shall be documented by data substantiating that weather conditions were abnormal for the period o time, cou no ave been reasonably anticipated and had an adverse effect on the scheduled construction AIA Document A201 - 2007 Copyright C 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal 37 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 1516 CLAIMS FOR CONSEQUENTIAL DAMAGES The Contractor and Owner waive Claims against each other for consequential damages ansmg out of or relating to this Contract This mutual waiver includes 1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons, and 2 damages incurred by the Contractor for principal office expenses including a compensation of personnel stationed there, for losses of financing, business and reputation, aid for loss of profit except anticipated profit arising directly from the Work This mutual waiver is applicable, without limitation, to all consequential damages due toe he party= s- termmatio m accordance with Article 14 Nothing contained in this Section 15 16 shall be deemed to re Jude an award of liquidated damages, when applicable, in accordance with the requirements of the Contract oc ments § 15 2 INITIAL DECISION § 15 21 Claims, excluding those arising under Sections 10 3, 10 4, 113 9, and 113 10, sha referred to the Irutial Decision Maker for nutial decision The Architect will serve as the Initial Decision Maker, nl ss otherw se indicated in the Agreement Except for those Claims excluded by this Section 15 2 1, an ial ecision s all e required as a condition precedent to mediation of any Claim arising prior to the date final p nt is due u ss 30 days have passed after the Claim has been referred to the Initial Decision Maker with no d isi n having ee rendered Unless the Initial Decision Maker and all affected parties agree, the Initial Decisi n aker will not decide disputes between the Contractor and persons or entities other than the Owner § 15 2 2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one or more of the following actions (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compro , or (5) advise the parties that the Initial Decision Maker is unable to resolve the Claim if the Initial Decisp aker lacks sufficient information to evaluate the merits of the Claim or if the Initial Decision Maker co alludes th n e Initial Decision Maker's sole discretion, it would be inappropriate for the Initial Decision er to r e the Claim § 15 2 3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult or see information from either party or from persons with special knowledge or expertise who may assist the Initia Decision Maker in rendering a decision The Initial Decision Maker may request the Owner to authorize retention o such persons at the Owner's expense § 15 2 4 If the Initial Decision Maker requests a party to provide a response to a Claim or to sh addKlaim supporting data, such party shall respond, within ten days after receipt of such request, and al it er response on the requested supporting data, (2) advise the Initial Decision Maker when the r sp rise or data will be furnished or (3) advise the Initial Decision Maker that no supporting data will a shed receipt of the response or supporting data, if any, the Initial Decision Maker will either red t o appro in whole or in part § 15 2 5 The Initial Decision Maker will render an initial decision approving or rejecting th Claim, or indicating that the Initial Decision Maker is unable to resolve the Claim This initial decision shall (1) be ing; (2°pstate°the reasons therefor, and (3) notify the parties and the Architect, if the Architect is not serving as the Initial Decision Maker, of any change in the Contract Sum or Contract Time or both The initial decision shall be fin nd -bind on the parties but subject to mediation and, if the parties fail to resolve their dispute through me ation, to binding dispute resolution § 15 2 6 Either party may file for mediation of an initial decision at any time, subject to the a of Section 15 2 6 1 § 15 2 61 Either party may, within 30 days from the date of an initial decision, demand in t g that the other party file for mediation within 60 days of the initial decision If such a demand is made and the p receiving the demand fails to file for mediation within the time required, then both parties waive their ri is to mecliNfe or pursue binding dispute resolution proceedings with respect to the initial decision AIA Document A201- - 2007 Copyright © 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA' Document or any portion of it may result in severe cavil and criminal 38 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) § 15 2 7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim If the Claim relates to a possibility of a Contractor's default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy § 15 2 8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines § 15 3 MEDIATION § 15 31 Claims, disputes, or other matters in controversy arising out of or related to the Coi tra t except those waived as provided for in Sections 9 10 4, 9 10 5, and 15 16 shall be subject to mediation as a condition prece ent to binding dispute resolution § 15 3 2 The parties shall endeavor to resolve their Claims by mediation which, unless the p mlies mutually agree otherwise, shall be administered by the American Arbitration Association in accordance wi th it Construction Industry Mediation Procedures in effect on the date of the Agreement A request for media ion shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity adin rmg the mediation The request may be made concurrently with the filing of binding dispute resolution procee mg but, in st c — fi l ivent, mediation shall proceed in advance of binding dispute resolution proceedings, which shall I ie s ayed pen g mediation for a period of 60 days from the date of filing, unless stayed for a longer period I y a reement f th parties or court order If an arbitration is stayed pursuant to this Section 15 3 2, the parties may nonethele s p oceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings § 15 3 3 The parties shall share the mediator's fee and any filing fees equally The mediatio sha he the place where the Project is located, unless another location is mutually agreed upon Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction <-' § 15 4 ARBITRATION § 15 41 If the parties have selected arbitration as the method for binding dispute resolutioement y Claim subject to, but not resolved by, mediation shall be subject to arbitration which, unleutual y agree otherwise, shall be administered by the American Arbitration Association in accord Constru do Industry Arbitration Rules in effect on the date of the Agreement A demand for arbitratioa t g, delivered to the other party to the Contract, and filed with the person or entity administering the on T e party filing a notice of demand for arbitration must assert in the demand all Claims then k part which arbitration is permitted to be demanded § 15 41 1 A demand for arbitration shall be made no earlier than concurrently with the filing of a qu for mediation, but in no event shall it be made after the date when the institution of legal or equi le procee gs bas on the Claim would be barred by the applicable statute of limitations For statute of hmitati ns ose rec i of a written demand for arbitration by the person or entity administering the arbitration shall co ti to the ins itu on legal or equitable proceedings based on the Claim § 15 4 2 The award rendered by the arbitrator or arbitrators shall be final, and judgment ma be entered up n i in accordance with applicable law in any court having jurisdiction thereof § 15 4 3 The foregoing agreement to arbitrate and other agreements to arbitrate with an add anal- persowiror entr duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof § 15 4 4 CONSOLIDATION OR JOINDER § 15 4 41 Either party, at its sole discretion, may consolidate an arbitration conducted underrther menimna other arbitration to which it is a party provided that (1) the arbitration agreement governing bi per mits consolidation, (2) the arbitrations to be consolidated substantially involve common qu tions of l and (3) the arbitrations employ materially similar procedural rules and methods for selects itrator(s) § 15 4 4 2 Either party, at its sole discretion, may include bYlomder persons or entities subs antia y invo common question of law or fact whose presence is required if complete relief is to be acco provided that the party sought to be joined consents in writing to such joinder Consent to arbitration involving an AIA Document A201" - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA` Document or any portion of it may result in severe civil and criminal 39 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5699098292_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent § 15 4 4 3 The Owner and Contractor grant to any person or entity made a party to an arbitration conducted under this Section 15 4, whether by joinder or consolidation, the same rights of joinder and consolidation as the Owner and Contractor under this Agreement Ll j AIA Document A201- - 2007 Copyright O 1911 1915 1918 1925 1937 1951 1958 1961 1963 1966 1970 1976 1987 1997 and 2007 by The American Institute of Architects All rights reserved WARNING This AIA Document is protected by U S Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA Document or any portion of it may result in severe civil and criminal 40 penalties and will be prosecuted to the maximum extent possible under the law This draft was produced by AIA software at 13 25 35 on 08/12/2013 under Order No 5649048242_1 which expires on 11/08/2013 and is not for resale User Notes (1697728566) City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 SECTION 007300 - SUPPLEMENTAL CONDITIONS The following supplements modify, change, delete from, or add to the referenced AIA A -201 "General Conditions of the Contract for Construction " Where any article of the General Conditions is Modified or any Paragraph, Subparagraph, or Clause is modified or deleted by Section 007300, the unaltered provisions of that Article, Paragraph, Subparagraph, or Clause remain in effect Modification to the General Conditions ARTICLE 1 CONTRACT DOCUMENTS 1 1 1 THE CONTRACT DOCUMENTS Add the following new subparagraphs 1 1 1 1 and 1 1 12 1 1 1 1 In the event of a conflict or discrepancy among or in the Contract Documents, interpretation shall be governed in the following priority 1 Agreement (A -101) 2 Supplemental Conditions 3 General Conditions (A -201) 4 Addenda 5 Schedules 6 Drawings 7 Specifications 8 Instructions to Bidders and Accepted Bid 1 1 12 In the event of any inconsistencies, conflicts or ambiguities between the Contract Documents, or within an individual document not clarified by addendum, the resolution of such inconsistencies, conflict or ambiguity shall be provided in accordance with the Architect's interpretation All conflicts are to be referred to the Architect for resolution and incorporation into a Contract Modification, if appropriate 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS Add the following new subparagraphs 12 1 1 and 12 12 1 2 1 1 Such execution of the Contract also constitutes a representation by the Contractor that it can fully perform the Contract and deal with all issues arising out of the Contract Documents or conditions of the site of the Work for the Contract Amount The failure of the Contractor fully to acquaint itself with any applicable condition or matter shall not in any way relieve the Contractor from the responsibility for performing the Work in accordance with the Contract Documents and within the Contract Time and the Contract Sum 1 2 1 2 Contractor to make the following representation to Owner A Contractor is financially solvent, able to pay its debts as they mature, and possesses sufficient working capital to complete the Work and perform Contractor's obligations required by the Contract Documents, and B Contractor is able to furnish the plant, tools, materials, supplies, equipment and labor required to complete the Work and perform the obligations required by the Contract Documents and has sufficient experience and competence to do so SUPPLEMENTAL CONDITIONS 007300-1 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 ARTICLE 2 OWNER 21 GENERAL Add the following new subparagraphs 2 1 1 1 and 2 1 12 21 1 1 The Owner is the City of Bremerton 21 12 The Owner shall designate a Project Manager to act on behalf of the Owner Unless specifically limited by the Owner, the Project Manager shall have, at their discretion, complete authority to transmit instructions, receive information, to interpret and define Owner's policies and decisions with respect to Work, and to approve Construction Change Directives within established budget limits The Owner shall retain the final decision on acceptance of the contract and approval of any proposed Change Orders or proposed Construction Change Directives except for the limited delegation in this paragraph Except for the limited approval authority delegated for Construction Change Directives, the Owner shall have the sole authority to authorize any change to the provisions of the contract which the Contractor claims may entitle the Contractor to any time or equitable adjustment or extra compensation 22 INFORMATION AND SERVICES REQUIRED OF THE OWNER Delete subparagraph 2 2 5 and substitute the following 2 2 5 The Contractor will be furnished free of charge PDF files of Drawings and Project Manuals for the purposes of making reproductions pursuant to Section 15 2 Add the following new subparagraphs 2 5 through 2 5 1 25 OWNER'S RIGHT AND RESPONSIBILITES 251 The Owner will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 3 3 The Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents The Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portion of the Work ARTICLE 3 CONTRACTOR 33 SUPERVISION AND CONSTRUCTION PROCEDURES Add the following to subparagraph 3 3 1 331 If the Contractor has any concerns, objections or reservations concerning such specific instructions, the Contractor must raise and resolve such issues with the Architect and the Owner prior to performing such specific instructions 34 LABOR AND MATERIALS Add the following to subparagraph 3 4 3 3 4 3 At no change to the Contract Sum or Contract Time, the Owner may provide written notice requiring the Contractor to remove from the Work any employee, subcontractor employee, or other person carrying out the Contract whom the Owner reasonably considers objectionable SUPPLEMENTAL CONDITIONS 007300-2 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 -September 16, 2013 Add the following subparagraph 3 4 4 through 3 4 4 6 3 4 4 PREVAILING WAGES 3 4 41 The Washington State Department of Labor and Industries Prevailing Wage Rates are part of the Contract 3 4 4 2 Washington State Department of Labor and Industries Prevailing Wage Rates which are in effect on the date when the bids by the Prime Contractor are required to be submitted are in effect for this project It is the Contractor's responsibility to follow the correct edition 3 4 4 3 No worker may be paid less than the prevailing minimum hourly wage rate established by the State Department of Labor and Industries Statements of Intent to Pay Prevailing Wages and Affidavits of Wages Paid are required The Contractor shall fully comply with all current applicable labor laws and regulations, including without limitation RWC Chapters 3912 (Prevailing Wages), 49 28 (Hours of labor), and 49 70 (Worker Right to Know) 3 4 4 4 Any fabricator or manufacturer that produces nonstandard items and is considered by the Department of Labor and Industries as a contractor must comply with all of the requirements of RCW 3912, including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" with the Department of Labor and Industries Industrial Statistician 3 4 4 5 The Owner reserves the right to perform wage rate interviews and /or require Contractor submission of certified payrolls for all Contractor and Subcontractor personnel 3 4 4 6 Contractor shall provide Owner with copies of the Intent to Pay Prevailing Wage forms as filed with the State of Washington for the contractor's forces and for all subcontractors 36 TAXES Change subparagraph 3 6 to read 36 The Contractor shall pay all applicable State and Local Sales, Consumer, Use and other similar taxes for Work or portions thereof provided by the Contractor The Owner shall include these taxes in his payments to the Contractor who shall pay the taxes to the proper authorities in accordance with the applicable laws and regulations governing this project Sales tax will not be included in bid amount 37 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS Delete subparagraph 3 71 and substitute the following 3 7 1 The Owner shall secure and pay for the Plan Review Fees, Budding Permit(s), Demolition Permit(s), Sign Permit(s), Water, Sanitary Sewer, and Storm Sewer Tap /Capacity /General Facility Charges /Permits /Fees, Utility Fees, L &I Electrical Plan Review Fees, The Contractor shall secure and pay for all other permits and governmental fees, licenses and inspections necessary for proper execution of and completion of the Contract which are legally required when bids are received 39 SUPERINTENDENT Add the following to subparagraphs 3 9 3 During the construction period should the initial superintendent fall dl, retire, be laid off or terminated employment, the Owner reserves the right to review and accept the replacement as stated above Add the following subparagraph 3 9 4 394 The Superintendent shall remain on the Project whenever Subcontractors are present and not less than eight hours per day, five days a week unless the fob is closed down due to a legal holiday, a SUPPLEMENTAL CONDITIONS 007300-3 City of Bremerton Bremerton Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 general strike, conditions beyond the control of the Contractor, termination of the Contract in accordance with the Contract Documents, or Final Completion is attained 3 10 ' CONTRACTOR'S CONSTRUCTION SCHEDULE Change this entire paragraph 3 10 to read 3 10 1 Within (7) calendar days following Notice to Proceed, the Contractor shall submit to the Owner and the Architect for review and comment, three copies of a CPM Schedule in form satisfactory to the Owner for Contractor's construction /erection of the Work The initial and any revisions of the Project Schedule shall be prepared and submitted in paper form With each approved monthly payment request, provide an updated Progress Schedule Not less than 5% (in retention) of Progress Payments to the Contractor may be withheld by the Owner until such initial and updated Progress Schedules have been timely submitted for review by the Owner and the Architect 3 10 2 The Project Schedule shall consist of a network diagram with activity descriptions and durations and supporting data which will explain the Contractor's planning of the work Contractor shall provide, if requested by Owner, cost allocation and resource estimates for each activity 3 10 2 1 The CPM Schedule diagram shall include (a) The order and interdependence of the Contractor's activities and the mayor points of the interface or interrelation with the activities of others, including Specific Dates for completion (b) Conformance with and identification of the Specific Dates specified in the Contract Documents (c) The descriptions of work by activity (d) The time required for preparation, and review of shop drawings, mock -ups, manufacturing, and delivery of Contractor - furnished permanent plant materials, especially long lead items (e) Critical Path (or Paths) (f) Testing of equipment and materials The CPM Schedule shall provide a complete and detailed sequence of operations of the Work within the time limits specified in the Contract 3 10 2 2 The identity and duration of all activities to be included in this CPM Schedule shall meet the following criteria (a) Activity descriptions shall be clear and concise The beginning and end of each activity shall be readily verifiable (b) Responsibility for each activity shall be identified with a single performing organization (c) The identity of any potential problems or constraints related to the implementation of the overall construction plan 3 10 2 3 A schedule for the purchase of items required for performance of the Work, showing lead items between purchase order placement and delivery dates, shall be integrated with the Progress Schedule upon request of the Owner The Contractor shall furnish the Architect with copies of all purchase orders and acknowledgements and fabrication, production, and shipping schedules for all mayor items on the critical path within 10 days of Contractor's receipt of each purchase order, acknowledgment or schedule Neither the Architect nor the Owner shall be deemed to have approved or accepted any such material, or its schedule, nor deemed to have waived this requirement if some or all of the material is not received SUPPLEMENTAL CONDITIONS 007300-4 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 -September 16, 2013 3 10 3 The CPM Schedule shall indicate an early completion date for the project that is not later than the project's required completion date All activity durations shall be given in calendar days The CPM Schedule shall also indicate each of the following (a) Interfaces with the work of outside contractors, e g, utilities, power, and with any separate contractor (b) Descriptions of activity including activity numbers (c) Estimated duration time for each activity (d) Early start date for each activity (e) Late start date for each activity (f) Early finish date for each activity (g) Late finish date for each activity (h) Float available for each batch of activities containing float (i) Actual start date for each activity begun (j) Actual finish date for each activity completed (k) Identification of all Critical Path activities in the mathematical analysis (1) The Critical Path for the project, with said path of activities being clearly and easily recognizable on the time- scaled CPM Schedule Diagram The relationship between all non- critical activities and activities on the Critical Path shall be clearly shown on the CPM Schedule Diagram 3 10 4 It is to be expressly understood and agreed by the Contractor that the schedule is an estimate to be revised from time -to -time as progress proceeds, and that the Owner does not guarantee that Contractor can start work activities on the "early start" or "late start" dates or complete work activities on the "early finish' or "late finish" date shown in the Schedule, or as same may be upgraded or revised, nor does the Owner guarantee that Contractor can proceed at all times in the sequence established by said Schedule If Contractor's schedule indicates that Owner or separate contractor is to perform an activity by a specific date, or within a certain duration, Owner or any separate contractor under contract with the Owner shall not be bound to said date or duration unless Owner expressly and specifically agrees in writing to same, the Owner's or the Architect's overall review and approval or acceptance of the Schedule does not constitute an agreement to specific dates, durations or sequences for activities of the Owner of any separate contractor 3.10 5 Should any of the conditions exist such that certain activities shown on the Contractor's CPM Schedule fall behind schedule to the extent that any of the specific dates are in jeopardy, the Contractor shall be required to, at no extra cost to the Owner, prepare and submit to the Owner a supplemental Recovery Schedule, in a form and detail appropriate to the need, to explain and display how he intends to reschedule those activities to regain compliance with the CPM Schedule during the immediately subsequent pay period 3 10 6 The Contractor shall do the following after determination of the requirement for a Recovery Schedule (a) Within three (3) calendar days, the Contractor shall submit a Recovery Schedule to the Owner for review The Recovery Schedule shall be prepared to a similar level of detail as the CPM Schedule and shall have a maximum duration of one (1) month (b) Any revisions necessary as a result of this review shall be resubmitted by the Contractor with any necessary revisions for acceptance within two (2) calendar days of the review The SUPPLEMENTAL CONDITIONS 007300-5 i City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 approved Recovery Schedule shall then be the Schedule which the Contractor shall use in planning, organizing, directing, coordinating, performing and executing the Work (including all activities of subcontractors, equipment vendors, and suppliers) for its one (1) month duration, to regain compliance with the CPM Schedule 3 10 7 Should the Contractor, after approval of the initial CPM Schedule desire to change his plan of construction, he shall submit his requested revisions to the Owner including a description of the logic for rescheduling the work, methods of maintaining adherence to Intermediate Milestones and Specific Dates The Contractor shall revise his Schedule to include the effect of changes, acts of God or other conditions or events which have affected the CPM Schedule, If the requested changes are acceptable to the Owner, they will be incorporated by the Contractor into the CPM Schedule in the next reporting period The resultant cost to the Owner for significant changes or a significant number of changes to the CPM Schedule shall be paid for by the Contractor 3 10 8 When the Owner orders changes by Change Order which have the potential to impact the Contract Milestones or Specific Dates stipulated, a Network will be prepared by the Contractor and provided to the Project Manager After the Network has been accepted by the Owner, it will be incorporated into the CPM Schedule by the Contractor 3 10 9 Failure of the Contractor to substantially comply with any of the scheduling requirements of this Contract at no cost to the Owner shall constitute cause that the Contractor is failing to prosecute the Work with such diligence as will insure its completion within the Contract times and shall be considered cause for termination by the Owner, pursuant to Article 14 of the General Conditions, and may also result in the Owner's withholding of Progress Payment(s) until the Contractor complies 3 1010 Float time is defined as the amount of time between earliest start date and the latest start date or between the earliest finish date or the latest finish date of a chain of activities on the CPM Schedule Float time is not for the exclusive use or benefit of either the Contractor of the Owner Contractor's work shall proceed according to start dates, and the Owner shall have the right to reserve and apportion float time according to the needs of the project The Contractor acknowledges and agrees that actual delays, affecting paths of activities containing float time, will not have any effect upon Contract Completion times, providing that the actual delay does not exceed the float time associated with those activities Extensions of time for performance as described in the Contract Documents will be granted only to the extent that time adjustments for the activity or activities affected by any condition or event which entitles the Contractor to a time extension exceeds the total float or slack time along the actual critical path of activities affected at the time of Notice to Proceed of a Change Order or the commencement of any delay, claim or condition for which an adjustment is claimed or warranted under the Contract Documents 3 1011 The Schedule Duration shall be based on the Contract Time of Completion listed on the Bid Form The Owner shall not be obligated to accept any Early Completion Schedule suggested by the Contractor The Contract Time for Completion shall establish the Schedule Completion Date If the Contractor feels that the work can be completed in less than the Specified Contract Time, then the Surplus Time shall be considered Project Float This Float time shall be shown on the Project Schedule It shall be available to accommodate changes in the work and unforeseen conditions Neither the Contractor nor the Owner have exclusive right to this Float Time It belongs to the project SUPPLEMENTAL CONDITIONS 007300-6 J City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 -September 16, 2013 311 DOCUMENTS AND SAMPLES AT THE SITE Add the following new subparagraphs 3 11 1 and 3 112 3 11 1 In addition, the Contractor shall keep the approved permit set of plans at the Jobsite during construction, in good condition Prior to final acceptance, the Contractor shall deliver this permit set to the Architect 3 11 2 Satisfactory maintenance of up -to -date record drawings will be a requirement for approval of monthly Progress Payments ARTICLE 5 SUBCONTRACTORS S3 SUBCONTRACTUAL RELATIONS Add the following new subparagraph S 3 1 The Contractor shall schedule, supervise and coordinate the operations of all Subcontractors No subcontracting of any of the Work shall relieve the Contractor from its responsibility for the performance of the Work in accordance with the Contract Documents or from its responsibility for the performance of any other of its obligations under the Contract Documents ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 62 MUTUAL RESPONSIBILITY Add the following to paragraph 621 If the Contractor receives items from a separate contractor or from the Owner for storage, erection or installation, the Contractor shall acknowledge receipt for items delivered, and thereafter will be held responsible for care, storage and any necessary replacement of item or items received At subparagraph 6 2 4, delete the word "wrongfully " ARTICLE 7 CHANGES IN THE WORK 72 CHANGE ORDERS Add the following paragraphs 7 2 2 through 7 2 5 7 2 2 Change proposal disagreements shall be submitted by the Contractor to the Architect in a form satisfactory to the Owner for such submittals The total cost of any change, including a claim shall be limited to the reasonable value thereof, to be determined in the following manner 723 ADDITIVE CHANGES la Direct Labor Costs This is defined as the estimated labor costs determined by either the estimated number of craft hours and the hourly costs necessary to perform the change in work, or the unit labor costs necessary to perform the change in work, or the unit labor costs applied to the material quantities, provided said unit labor costs are developed from the SUPPLEMENTAL CONDITIONS 007300-7 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 above craft man hour cost, whichever is applicable, according to industry practice The hourly cost shall be based on the following 1 Basic Wages Current minimum prevailing hourly wage rates, including vacation pay, for all labor, crew foreman, and general foreman performing and /or directly supervising the work on site These rates, whichever are applicable, are established by the State of Washington, Department of Labor and Industries 2 Fringe Benefits Fringe benefits established by the State of Washington, Department of Labor and Industries or contributed to labor trust funds as itemized fringe benefits, whichever is applicable 3 Worker's Insurance Direct contributions to the State of Washington as Industrial Insurance, Medical Aid, and Supplemental Pension, by the class and rates established by the State of Washington, Department of Labor and Industries 4 Federal Insurance's Direct contributions required by the Federal Insurance Compensation Act (FICA), Federal Unemployment Tax Act (FUTA), and the State Unemployment Compensation Act (SUCA) 5 Costs incurred by the Washington Industrial Safety and Health Act (WISHA), established as 2% of 1, 2, 3, and 4 above 6 Travel allowances and /or subsistence if applicable not to exceed those established by Regional Labor Union Agreements shall be itemized and identified separately 1 b Direct Material Costs This is defined as an itemization of the estimated quantity of materials necessary to perform the change in the work and the cost thereof These costs shall be by the unit cost applied to the quantity and extended The unit costs shall be based on the following 1 The net costs after all offered or available discounts or rebates 2 Freight costs, express charges, or special delivery costs when applicable No lump sum costs will be allowed except when approved in advance by the Architect 1 c Construction Equipment Usage Costs 1 Rental Equipment This is defined as an itemization of and the estimated length of time construction equipment will be used on change order work at the site The rental costs applied thereof will be the rates established by the following whichever is applicable a) The current hourly rental rates established by agreement between the Associated General Contractors (AGC) and Washington State Department of Highways b) The current rental rates established by the State of Washington, utilities and Transportation Commission for trucks used on highways c) The current rental rates established by the National Electrical Contractor's Association (NECA) for equipment used on electrical work d) The current rental rates established by the mechanical Contractor's Association for equipment used on mechanical work e) If equipment is required for which a rental rate is not established in any of the above, an agreed rental rate shall be established for that equipment Such rates and the use of the equipment on the work must be approved by the Architect prior to performing the work f) The rates in effect at the time of performance of the work are the maximum rates allowable for equipment of modern design and in good working condition and include full compensation for furnishing all fuel, oil, lubrication, repairs, maintenance, and insurance 2 Small Tools, Expendable and Consumable Supplies SUPPLEMENTAL CONDITIONS 007300-8 City of Bremerton Bremerton Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 a) These are general in nature and are defined as tools for which the initial purchase price is under $250 and are normally furnished by the performing contractor b) The allowable rate for small tools will be - General Contractors, 3% direct labor costs - Specialty Contractors, 5% direct labor costs c) Expendable and consumable supplies directly associated with the change in work to be itemized ld Subcontractor Proposals Subcontractors' proposals are to be itemized as in la, 1b, and 1c above le Overhead and Profit by the Contractor Actually Performing the Work A total amount, not to exceed 10% of items la, 1b, and 1c above will be allowed This is to compensate such contractor for all personnel not defined in 1a above, temporary construction facilities, home office costs, office architecting and estimating costs, profit, and any other cost incidental to the performance of the change in work If Overhead and Profit by the Contractor and Subcontractor when Subcontractor actually performs the Work 1 A total amount not to exceed 8% of the total amount of subcontractors proposal as defined in 1 d above will be allowed to the Contractor for all overhead and profit to supervise and administer the subcontractors actually performing the change in the work The Subcontractor doing the work will be allowed no more than 10% Lower tier sub - subcontractors will be allowed no more than 7% 2 No direct costs of the Contractor will be allowed to be added to a subcontractor's proposal Contractor's direct cost, if required, must be submitted as outlined in la, 1 b, 1c and lg 1g Cost of Any Increase or Decrease in Premium for Insurance and Bond Caused by the Change 1 Contractor's Liability Insurance To the above, the costs of the Contractor's Liability Insurance may be increased or decreased 2 Bond To the above, the cost of the Contractor's Bond may be increased or decreased 724 DEDUCTIVE CHANGES 2a Items la (labor), lb (material), 1 c (equipment), 1 d (subcontractor), le (overhead and profit, Contractor), If (overhead and profit, subcontractor), 1g (insurance and bond) will be itemized for deleted changes in the work 725 ADDITIVE CHANGES AND DEDUCTIVE CHANGES TOGETHER 3a If a change in the work involves both additive and deductive changes, the appropriate overhead and profit amount allowed will be added to the net difference of items 1 a, 1b, 1 c, and Id 3b If other additive unrelated changed items are included in the same change proposal, the appropriate overhead and profit allowed is to be applied to these individual change items ARTICLE 8 TIME 82 PROGRESS AND COMPLETION Add the following new subparagraphs 8 2 4 and 8 2 5 SUPPLEMENTAL CONDITIONS 007300-9 City of Bremerton Bremerton Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 8 2 4 The Contractor shall furnish such manpower, materials, facilities, and equipment and shall work such hours, including night shifts, overtime operations and Sundays and holidays, as may be necessary to insure the progress and completion of the Work in accordance with the approved and currently updated Progress Schedule If work actually in place falls behind the currently updated and approved Progress Schedule and it becomes apparent from the current schedule that the Work will not be completed within the Contract Time, the Contractor agrees that he will, as necessary, take some or all of the following actions at no additional cost to the Owner, as required to substantially eliminate tardiness of Work 1 Increase the manpower in such quantities and crafts as will substantially eliminate, in the opinion of the Owner, the backlog of Work 2 Increase the number of working hours per shift, shifts per working day, working days per week, or the amount of equipment, or any combination of the foregoing sufficiently to substantially eliminate, in the opinion of the Owner, the backlog of Work, and 3 Reschedule activities to achieve maximum practical concurrency of accomplishment of activities 825 The Contractor and Owner acknowledge and contemplate that delay in substantial completion and final completion will cause the Owner substantial damages which are difficult to determine precisely To the extent the Owner is unable to beneficially occupy each of the facilities which are the subject of this Contract, the Owner is expected to experience damages and costs including but not limited to the following Loss of use of the facility, the costs of delayed move -in and the disruption of Owner activities and schedule, and rescheduling and shift changes to paid personnel The parties therefore agree that the following sums of liquidated damages shall be paid to the Owner (or the Owner may withhold payments otherwise due to the Contractor) in liquidation of these difficult to measure damages and /or delay costs reasonably anticipated as a result of delays beyond the dates as established in the Contract, as they may be extended by agreement of the parties by change order during the course of the project SUBSTANTIAL COMPLETION For each calendar day after the date fixed for Substantial Completion and until Substantial Completion of the facilities, the Contractor shall pay the Owner the sum of One - thousand ($ 1,000 00) The Owner shall not be required to accept Substantial Completion of anything less than the entirety of the project but shall have the option to do so This sum is to be fixed, agreed, liquidated damages and not to be construed as in any sense a penalty FINAL COMPLETION Actual damages will be assessed for failure to achieve Final Completion within 14 days after Substantial Completion Actual damages will be calculated on the basis of direct architectural, administrative, and other related costs attributed to the Project from the date when Final Completion should have been achieved, to the date Final Completion is actually achieved Owner may offset these costs against any payment due to the Contractor by reduction in retainage 83 DELAYS AND EXTENSIONS OF TIME Change subparagraph 8 3 3 to read 833 Except as provided in this subparagraph, the Contractor's sole remedy for delays shall be an extension of time Except for unreasonable delays in performance caused by the acts or omissions of the Owner, the Contractor shall not be entitled to damages, extra compensation or equitable adjustment for direct, indirect or impact damages for delay, including but not limited to cost of acceleration, home office overhead or lost profits All claims for damages or extensions of time are subject to the requirements of Article 15 In the event the Contractor is entitled to damages from the SUPPLEMENTAL CONDITIONS 007300-10 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 Owner for delay, it is agreed that the Contractors sole damages for each day of delay shall be limited to the daily liquidated damage rate provided for the Owner in subparagraph 8 2 5 above ARTICLE 9 PAYMENT AND COMPLETION 93 APPLICATIONS FOR PAYMENT Add the following new subparagraph 9 3 1 3 Until Substantial Completion, the Owner shall pay 95 percent of the amount due the Contractor on account of progress payments Add the following new subparagraph 934 If authorized by the Owner, the Application for Payment may include request for payment for material delivered to the Project site and suitably stored, or for completed preparatory work Payment may similarly be requested, subject to Owner's approval, for material stored off the Project site, provided the Contractor complies with or furnishes satisfactory evidence of the following 1 The material will be placed in a warehouse that is structurally sound, dry, lighted and suitable for the materials to be stored, 2 The warehouse is located within a 25 -mile radius of the project Other locations may be utilized, if approved in writing, by Owner, 3 Only materials for the Project are stored within the warehouse (or a secure portion of a warehouse set aside for the Project), 4 Contractor furnishes Owner a certificate of insurance extending Contractor's insurance coverage for damage, fire, and theft to cover the full value of all materials stored, or in transit, 5 The warehouse (or secure portion thereof) is continuously under lock and key, and only Contractor's authorized personnel shall have access, 6 Owner shall at all times have the right of access in company of the Contractor, 7 Contractor and its surety assume total responsibility for the stored materials, and 8 Contractor furnishes to Owner certified lists of materials stored, bills of lading, invoices, and other information as may be required, and shall also furnish notice to owner when materials are moved from storage to the Project site 95 DECISIONS TO WITHHOLD CERTIFICATION Add the following to subparagraph 9 5 1 The Architect may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or part of a Certificate for Payment previously issued, or the Owner may refuse to process an application for payment to such extent as may be necessary in the Owner's or Architect's opinion to protect the Owner from loss because of Add the following new subparagraphs 9 5 18 through 9 5 1 12 9 5 1 8 Unsatisfactory prosecution of the Work by the Contractor, including but not limited to failure to carry out the Work in accordance with the Contract Documents 9 5 19 Failure or refusal of the Contractor to fully comply with requirements in the Contract Documents for preparation and submission of scheduling of the Work and updates thereof, or failure to present statements of Intents or Affidavits pertaining to prevailing wages paid as may be required by statue SUPPLEMENTAL CONDITIONS 007300-11 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 9 5 1 10 Liquidated damages 9 5 1 11 Failure to provide adequate security measures to protect materials stored on site for which the Contractor is seeking payment for 9.5 1 12 Failure to provide evidence that the performance and payment bonds have been increased to equal the sum of Change Orders 96 PROGRESS PAYMENTS Add the following new subparagraphs 9 6 8 through 9 6 13 9 6 8 Upon Commencement of the Work and at the option of the Contractor, an escrow account may be established by the Contractor in a financial institution chosen by the Contractor and approved by the Owner 9 6 9 The escrow agreement shall provide that the financial institution will act as escrow agent, will pay interest on funds deposited in such account in accordance with the provisions of the escrow agreement and will disburse funds from the account upon the direction of the Owner as set forth below Compensation to the escrow agent for establishing and maintaining the escrow account shall be paid from interest accrued in the escrow account 9 6 10 As each progress payment is made, the retainage with respect to that payment shall be deposited by the Owner in the escrow account 9611 The interest earned on funds in the account shall accrue for the benefit of the Contractor until the substantial completion date named in the Construction Contract or the expiration of any authorized extension of such date Interest earned after such date shall accrue for the benefit of the Owner Cost of compensation to the escrow agent paid out of interest earned shall be borne by the Contractor 9 6 12 When the Contractor has fulfilled all of the requirements of the Contract providing for reduction of retained funds, the escrow agent shall release to the Contractor one -half of the accrued funds but none of the interest thereon When the Work has been fully completed in a satisfactory manner and the Architect has issued a final Certificate for Payment, the escrow agent shall pay to the Contractor the full amount of funds remaining in the account, including net balance of the interest paid to the account, but less any interest that may have accrued for the benefit of the Owner, which shall be paid to the Owner 9 613 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor, the escrow agent shall make payment to the Contractor as provided in Subparagraph 910 3 98 SUBSTANTIAL COMPLETION Change subparagraph 9 81 to read 981 Substantial Completion is the stage in the progress of the Work (or portion thereof designated and approved by the Architect and Owner) when the construction is sufficiently complete, in SUPPLEMENTAL CONDITIONS 007300-12 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 -September 16, 2013 accordance with the Contract Documents, so the Owner can fully occupy under necessary permits the Work (or portion thereof designated by the Owner) for the use for which it is intended All Work other than incidental corrective or punch list work and final cleaning shall have been completed Add the following new subparagraph 9 8 6 The acceptance of Substantial Completion payment shall constitute a waiver of all claims by the Contractor except those previously made in writing and identified by the Contractor as unsettled at the time of the application for payment for the Substantial Completion payment, and except for the Contract Sums due at Final Acceptance 910 FINAL COMPLETION AND FINAL PAYMENT Add the following to this subparagraph 9 10 1 The Architect's final Certificate of Payment shall establish the date of Final Completion If the Contractor notifies the Architect that the punch list items are completed and requests an inspection to determine compliance, and the Architect determines that some or all the punch list items are not completed, the Contractor shall be responsible to the Owner for all costs, including Architect's fees, for any future Architect's inspections after the first inspection to determine subsequent compliance with the punch list ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY 10 2 SAFETY OF PERSONS AND PROPERTY Add the following new subparagraph 10 2 8 10 2 8 At all times until final acceptance of the Work, the Contractor shall protect from damage, weather, deterioration, theft, vandalism, and, malicious mischief all materials, equipment, tools, and other items incorporated or to be incorporated in the Work, or consumed or used in the performance of the Work, and all Work in process and completed Work Replace paragraphs 10 3 3, 10 3 5 and 10 3 6 with 10 3 3a and 10 3 3b 10 3 3a To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, its officers, officials, employees, agents and volunteers against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10 3 1 and has not been rendered harmless, 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), except to the extent that such damage, loss or expense is due to the fault or negligence of the party seeking indemnity 10 3 3b To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractor, agents and employees against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10 3 1 and has not been rendered harmless, 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), except to the extent that such damage, loss or expense is due to the fault or negligence of the party seeking indemnity SUPPLEMENTAL CONDITIONS 007300-13 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 -September 16, 2013 ARTICLE 11 INSURANCE 11 1 CONTRACTOR'S LIABILITY INSURANCE Add the following new subparagraphs 11 1 19 and 11 1 1 10 11 1 1 9 Liability Insurance shall include all mayor divisions of coverage and be on a comprehensive basis including 1 Premises operations (including X, C and U coverage's as applicable) 2 Independent Contractors' Protective 3 Products and Completed Operations 4 Personal Injury Liability with Employment Exclusion deleted 5 Contractual, including specified provision for Contractor's obligation under Paragraph 318 6 Owned, non -owned and hired motor vehicles 7 Broad Form Property Damage including Completed Operations 11 1 1 10 If the General Liability coverage's are provided by a Commercial General Liability Policy on a claims -made basis, the policy date or Retroactive Date shall predate the Contract, the termination date of the policy or applicable extended reporting period shall be no earlier than the termination date of coverages required to be maintained after final payment, certified in accordance with Subparagraph 9 10 2 Add the following subparagraph 11 12 1 11 1 2 1 The insurance required by Subparagraph 11 1 1 shall be written for not less than the following limits, or greater if required by law 1 Worker's Compensation a State Statutory b Applicable Federal Statutory c Employer's Liability $100,000 per Accident 2 Comprehensive or Commercial General Liability (including Premises - operations, Independent Contractors' Protective, Products and Completed Operations, Broad Form Property Damage) a Bodily Injury $1,000,000 Each Occurrence $ 2,000,000 Aggregate b Property Damage $1,000,000 Each Occurrence $2,000,000 Aggregate c Products and Completed Operations to be maintained for a minimum period of 3 years after final payment d Property Damage Liability insurance shall provide Explosion, Collapse, and Underground coverage e Broad Form Property Damage Coverage shall include Completed Operations 3 Contractual Liability a Bodily Injury SUPPLEMENTAL CONDITIONS 007300-14 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 $1,000,000 Each Occurrence $2,000,000 Aggregate b Property Damage $1,000,000 Each Occurrence $2,000,000 Aggregate 4 Personal Injury, with Employment Exclusion deleted $2,000,000 Aggregate 5 Business Auto Liability (including owned, non -owned and hired vehicles) a Bodily Injury $1,000,000 Each Person $1,000,000 Each Occurrence b Property Damage $1,000,000 Each Occurrence Add the following subparagraphs 11 13 1 through 11 13 5 11 1 3 1 The certificate of insurance shall name the Owner as "Additional Insured " Certificate is required at time contract is signed 11 1 3 2 The Contractor shall provide an original of the executed insurance policy Endorsement to the Owner prior to commencement of the work 11 1 3 3 Upon request of the Owner, the Contractor shall provide complete, certified copies of all required insurance polices 11 1 3.4 All insurance policies except Workers' Compensation shall specify that the insurance provided by the Contractor will be primary and non - contributory to any other insurance available to the Owner 11 1 3 5 To the extent allowed by law, the Contractor agrees to waive all rights of subrogation to recover damages caused by any claim arising from Work performed by or on behalf of the Contractor under the Contract covered by insurance obtained pursuant to this Section 11 1 Endorsements shall be provided with certificates of insurance 113 PROPERTY INSURANCE Paragraph 113 1 in the first sentence change from "the Owner shall purchase and maintain " to read "the Contractor shall purchase and maintain " Delete subparagraph 113 12 Paragraph 113 13 in the first sentence change from "the Owner shall pay" to read "the Contractor shall pay Paragraph 113 2 in the first sentence change from "the Owner shall purchase and maintain " to read "the Contractor shall purchase and maintain " SUPPLEMENTAL CONDITIONS 007300-15 City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 Delete paragraphs 113 3, 13 4 and 13 5 Delete paragraphs 113 4 and 113 5 and replace with the following 11 3 4 All insurance policies except Workers' Compensation shall specify that the insurance provided by the Contractor will be primary and non - contributory to any other insurance available to the Owner 11 3 5 To the extent allowed by law, the Contractor agrees to waive all rights of subrogation to recover damages caused by any claim arising from Work performed by or on behalf of the Contractor under the Contract covered by insurance obtained pursuant to this Section 11 1 Endorsements shall be provided with certificates of insurance Delete Paragraph 113 6 and substitute the following 11 3 6 Before an exposure to loss may occur, the Contractor shall file with the Owner a copy of each policy that includes insurance coverages required by this Section 11 3 Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days' prior written notice has been given to the Owner 11 3 7 At the end of the first sentence, revise "Owner as fiduciary" to "Contractor as fiduciary " Delete paragraphs 113 8,113 9, and 113 10 in their entirety 114 PERFORMANCE AND PAYMENT BONDS Delete Subparagraph 114 1 and substitute the following 11 41 The Contractor shall provide bonds covering faithful performance of the Contract and payment of obligations arising thereunder Bonds may be obtained through the Contractor's usual source and the cost thereof shall be included in the Contract Sum The amount of each bond shall be equal 100 percent of the Contract Sum including all change orders and sales tax Add the following new subparagraphs 114 1 1 The Contractor shall deliver the required bonds to the Owner no later than ten days following the Notice of Award and shall also be submitted with the signed and executed contract 11 41 2 Bonds shall be obtained from companies holding certificates of authority as acceptable sureties pursuant to 31 CFR part 223 11 4 1 3 Provide bonds executed by surety company or companies authorized to transact business in State in which the project is being constructed Required form Performance Bond and Payment Bond AIA -A312, March 1984 Bonding company as approved by Owner 11 41 4 Provide originals of the executed bonds to the Owner, complete with original ink signatures and original stamps /embossing 11 41 5 Provide proof of bond rider adjustments in the bond sum for Change Orders in conjunction with requests for progress payments SUPPLEMENTAL CONDITIONS 007300-16 City of Bremerton Bremerton Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 -September 16, 2013 Add the following paragraph 115 115 INDEMNITY AND HOLD HARMLESS 11 5 1 The Contractor agrees to defend, indemnify and save harmless the Owner, Architect, and their agents, and employees against any and all loss, damage, liability, claims, demands or costs resulting from injury or harm to persons or property (including, with limitation, the Contractor's employees or property) arising out of or in any way connected with Contractor's performance hereof, excepting only such injury or harm as may have been caused solely by the fault or negligence of the Owner, Architect, and their agents, and employees, and shall be deemed to include those of subcontractors 11 5 1 1 The Owner's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification 11 5 1 2 Should a court of competent jurisdiction determine that this agreement is subject to RCW 4 24115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the Owner, its officials, employees, agents and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence 11 5 2 IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION THE PARTIES FURTHER ACKNOWLEDGE THATTHEY HAVE MUTUALLY NEGOTIATED THIS WAIVER 11 5 3 The provisions of Section 115 shall survive the expiration or termination of this Agreement ARTICLE 13 MISCELLANEOUS PROVISIONS 135 TESTS AND INSPECTIONS Add the following new subparagraph 13 5 7 No acceptance by the Owner of any Work shall be construed to result from any inspection, tests or failures to inspect by the Owner, the Owner's representative, the Architect or any other person No inspection, test, failure to inspect or test, or failure to discover any defect or non conformity by the Owner, the Owner's representative, the Architect or any other person shall relieve the Contractor of its responsibility for meeting the requirements of the Contract Documents or impair the Owner's right to reject defective or nonconforming items or right to avail itself of any other remedy to which the Owner may be entitled, notwithstanding the Owner's knowledge of the defect or nonconformity, its substantially or the ease of discovery Paragraph 13 7, Time Limit on Claims in the first sentence, delete" but in any case not more than 10 years after the date of Substantial Completion of the Work " Add the following new paragraphs 13 8 through 13 8 12 13 8 EQUAL OPPORTUNITY SUPPLEMENTAL CONDITIONS 007300 -1 7 City of Bremerton Bremerton Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 -September 16, 2013 13 8 1 The Contractor shall maintain policies of employment as follows 13 8 1.1 The Contractor and the Contractor's Subcontractors shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, marital status, physical and mental disabilities, or national origin The Contractor shall take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, religion, color, sex, sexual orientation, marital status, physical and mental disabilities, or national origin Such action shall include, but not be limited to, the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth policies of nondiscrimination 13 8 1 2 The Contractor and the Contractor's Subcontractors shall, in all solicitations or advertisements for employees placed by them or on their behalf, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, sexual orientation, marital status, physical and mental disabilities, or national origin ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT 142 TERMINATION BY THE OWNER FOR CAUSE Change subparagraph 14 2 1 to read 14 2 1 The Owner may, upon seven days' written notice to the Contractor, terminate (without prejudice to any right or remedy of the Owner) the whole or any portion of the Work for cause, including the following circumstances 1 the Contractor fails to prosecute the Work or any portion thereof with sufficient diligence to ensure the Substantial Completion of the Work within the Contract Time, 2 the Contractor is in material default of any provision of the Contract, 3 the Contractor is adjudged bankrupt, makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of its insolvency, 4 the Contractor fails to supply a sufficient number of properly skilled workers or proper materials, 5 the Contractor fails to make prompt payment due to Subcontractors or for materials or labor, 6 the Contractor disregards laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, or 7 the Contractor materially breaches any provision of the Contract Documents Add the following new subparagraph 1425 If the Owner terminates in whole or part the Work pursuant to paragraph 14 2, the Owner may procure, upon such terms and in such manner as it deems appropriate, supplies or services similar to those terminated, and the Contractor shall be liable to the Owner for any excess costs for such similar supplies or services The Contractor shall continue to perform of this Contract to the extent not terminated hereunder ARTICLE 15 ADMINISTRATION OF THE CONTRACT Delete Article 15 in its entirety and replace with the following SUPPLEMENTAL CONDITIONS 007300-18 Cif of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued Addendum 01 - September 16, 2013 15 1 CLAIMS The Contractor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims Any claim for damages, additional payment for any reason, or extension of time, whether under this agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement, or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Contractor knew, or should have known, of the facts giving rise to the claim At a minimum, a Contractor's written claim must include the information set forth regarding protests in Section 7 A 2 a -e FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY Contractor must, in any event, file any claim or bring any suit arising from or connected with this agreement within 120 calendar days from the date the contract work is complete 15.2 GOVERNING LAW This agreement shall be governed and construed in accordance with the laws of the State of Washington If any dispute arises between the City and Contractor under any of the provisions of this agreement, resolution of that dispute shall be available only through the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington 15 3 ATTORNEY'S FEES To the extend not inconsistent with RCW 39 04 240, in any claim or lawsuit for damages arising from the parties' performance of this agreement, each party shall be responsible for payment of its own legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, however, nothing in this subsection shall limit the City's right to indemnification under Section 115 of the Supplemental Conditions herein 15 4 WARRANTY The Contractor shall correct all defects in workmanship and materials within one year from the date of the Contractor's acceptance of the City's final payment under this contract When defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction END OF SECTION SUPPLEMENTAL CONDITIONS 007300-19 AGENDA BILL 79 CITY OF BREMERTON CITY COUNCIL ■■ ���0000E00ENa0ME000EEEaM000Ma0N00NE0EEEEEEeNEaffa000000EMNNa000NEEa00EM 0aNa0x8 0Kx0NN001 SUBJECT Contract Award to Study Session Date October 9, 2013 ThyssenKrupp Elevator Americas for COUNCIL MEETING Date October 16, 2013 Elevator Improvements related to the Kitsap Department PW &U Conference Center Expansion Project Presenter Martin Phone X 5758 SUMMARY Sealed proposals were solicited for elevator improvements related to the Kitsap Conference Center Expansion project Wednesday, August 21, 2013 Proposals were opened at 2 00 p m Friday, September 13, 2013 One proposal was received, from ThyssenKrupp Elevators Americas ThyssenKrupp's proposal provided several options Kitsap Transit has selected the option to install new and improved constant -speed hydraulic control valves and improved hydraulic fluid, which will provide faster, consistent leveling This option costs $103,444 76, including tax This contract will implement the option chosen ATTACHMENTS Proposed Contract FISCAL IMPACTS (Include Budgeted Amount) $200,000 has been budgeted for elevator and building system improvements The project budget provides $118,445 for elevator improvements (including $15,000 to modernize the interior of the elevators), leaving an additional $81,555 to apply to the Conference Center expansion project STUDY SESSION AGENDA ❑ No Discussion Nx Full Presentation STUDY SESSION ACTION ❑ Consent Agenda Nx General Business ❑ Public Hearing RECOMMENDED MOTION Move to enter into a contract with ThyssenKrupp Elevator Americas for $103,444 76, including tax, for elevator improvements related to the Kitsap Conference Center Expansion Project, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 11/02/12 PUBLIC WORKS AGREEMENT THIS AGREEMENT, is entered into between the City of Bremerton, a Washington Municipal Corporation ( "City "), and ThyssenKrupp Elevator Americas ( "Contractor "), whose mailing address is 2021 130` Avenue NE, Bellevue, WA 98005 The parties agree as follows 1. CONTRACTOR SERVICES. The Contractor shall perform the following services for the City Elevator Retrofit for the Kitsap Regional Conference Center Retrofitted elevators will meet or exceed the following performance criteria, outlined below and further defined in Appendix C of the Request for Proposals, Elevator Retrofit for the Kitsap Regional Conference Center, issued August 21, 2013 • Speed 200 feet per minute, plus or minus 3% • Flight time 12 5 seconds • Door opening time 16 seconds • Door closing time 2 4 seconds • Leveling 1/8 inch 2. TIME OF COMPLETION. Contractor shall complete the work by March 14, 2014 3. COMPENSATION. The City shall pay the Contractor the total amount of $95,253, plus any applicable Washington State Sales Tax, for the work and services contemplated in this agreement The Contractor shall invoice the City monthly The City will pay for the portion of the work described in the invoice that has been completed by the Contractor and approved by the City The City payment shall not constitute a waiver of the City's right to final inspection and acceptance of the project A Performance Bond Pursuant to Chapter 39 08 RCW, the Contractor, shall provide the City a performance bond for the full contract amount to be in effect until sixty (60) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor and Industries and until settlement of any liens filed under Chapter 60 28 RCW, whichever is later B Retamage The City shall hold back a retainage in the amount of five percent (5%) of any and all payments made to contractor for a period of sixty (60) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor & Industries and until settlement of any liens filed under Chapter 60 28 RCW, whichever is later PUBLIC WORKS AGREEMENT — Page 1 of 10 (October 11 2013) (between City of Bremerton and ThyssenKrupp Elevator Amencas) C Defective or Unauthorized Work The City reserves its right to withhold payment from Contractor for any defective or unauthorized work Defective or unauthorized work includes, without limitation work and materials that do not conform to the requirements of this agreement, and extra work and materials furnished without the City's written approval If Contractor is unable, for any reason, to satisfactorily complete any portion of the work, the City may complete the work by contract or otherwise, and Contractor shall be liable to the City for any additional costs incurred by the City "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Contract price specified above The City further reserves its right to deduct the cost to complete the Contract work, including any Additional Costs, from any and all amounts due or to become due the Contractor D Final Payment Waiver of Claims THE ACCEPTANCE OF FINAL PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE 4. INDEPENDENT CONTRACTOR. Contractor is and shall be at all times acting as an independent contractor and not as an employee of the City The Contractor shall secure at its expense, and shall be responsible for all payments of income tax, social security, state industrial insurance compensation, unemployment compensation, and all other payroll deductions for the Contractor, officer, agents, employees and sub - contractors The Contractor shall also secure all applicable business licenses, if required, in connection with the contract services, including all required licenses for Contractor's officers, agents, employees and sub- contractors 5. TERMINATION. The City may terminate this agreement without notice for good cause "Good cause" shall include, without limitation, any one or more of the following events A The Contractor's failure to supply sufficient skilled workers or suitable materials or equipment B The Contractor's failure to prosecute the work with such diligence as will ensure its physical completion within the original physical completion time specified in this Agreement and any extensions of time which may have been granted to the Contractor by change order or otherwise C The Contractor's failure to make full and prompt payment to subcontractors or for material or labor PUBLIC WORKS AGREEMENT — Page 2 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) D The Contractor's disregard of federal, state or local laws, rules or regulations E The Contractor's filing for bankruptcy or becoming adjudged bankrupt F The Contractor disregards the authority of the City G The Contractor performs work which deviates from the Contract, and neglects or refuses to correct rejected work H The Contractor's failure to provide continuous competent supervision I The Contractor otherwise violates in any material way any provisions or requirements of the contract If the City terminates this agreement for good cause, the Contractor shall not receive any monies due under this agreement, if any, until the Contract work is completed 6. PREVAILING WAGES. Contractor shall file a "Statement of Intent to Pay Prevailing Wages," with the State of Washington Department of Labor & Industries prior to commencing the Contract work Contractor shall pay prevailing wages and comply with Chapter 39 12 of the Revised Code of Washington, as well as any other applicable prevailing wage rate provisions The latest prevailing wage rate revision issued by the Department of Labor and Industries is attached 7. CHANGES. The City may issue a written or oral work change directive for any change in the Contract work during the performance of this agreement If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the City's project manager within two (2) business days of the date the Contractor knew or should have known of the facts and events giving rise to the requested change If the City determines that the change increases or decreases the Contractor's costs or time for performance, the City will make an equitable adjustment The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate The Contractor shall proceed with the change order work upon receiving either a written or oral work change directive from the City or a change order from the City If the Contractor fails to require a change order within the time allowed, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work If the Contractor disagrees with the equitable adjustment the Contractor must complete the change order work, however, the Contractor may elect to protest the adjustment as provided below i A Procedure and Protest by the Contractor If the Contractor disagrees with anything required by a written work change directive, oral work change directive or change order, including any direction, instruction, interpretation, or determination by the City, the Contractor shall 1 PUBLIC WORKS AGREEMENT — Page 3 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) I Give a signed written notice of protest to the City within one business day, 2 Supplement the written protest within five (5) calendar days with a written statement that provides the following information a The date of the Contract's protest b The nature and circumstances that caused the protest c The provisions in this agreement that support the protest d The estimated dollar cost, if any, of the protested work and how that estimate was determined e An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption The Contractor shall keep complete records of extra costs and time incurred as a result of the protested work The City shall have access to any of the Contractor's records needed for evaluating the protest 3 The City will evaluate all protests, provided the procedures in this section are followed If the City determines that a protest is valid, the City will adjust payment for work or time by an equitable adjustment No adjustment will be made for an invalid protest B Contractor's Duty to Complete Protested Work In spite of any protest, the Contractor shall proceed promptly with the work as the City has ordered C Contractor's Acceptance of Changes The Contractor accepts all requirements of a change order by (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides A change order that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change i D Failure to Protest Constitutes Waiver By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination) E Failure to Follow Procedures Constitutes Waiver By failing to follow the procedures of this section, the Contractor completely waives any claims I PUBLIC WORKS AGREEMENT — Page 4 of 10 (October 11 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) for protested work and accepts form the City any written or oral order (including directions, instructions, interpretations, and determination) 8. CLAIMS. The Contractor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims Any claim for damages, additional payment for any reason, or extension of time, whether under this agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement, or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Contractor knew, or should have known, of the facts giving rise to the claim At a minimum, a Contractor's written claim must include the information set forth regarding protests in Section 7 A 2 a -e FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY Contractor must, in any event, file any claim or bring any suit arising from or connected with this agreement within 120 calendar days from the date the contract work is complete 9. WARRANTY. The Contractor shall correct all defects in workmanship and materials within one year from the date of the Contractor's acceptance of the City's final payment under this contract When defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction 10. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees, arising out of or in connection with the performance of this agreement, except for injuries and damages solely caused by the City's negligence The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification Should a court of competent jurisdiction determine that this agreement is subject to RCW 4 24 115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officials, employees, agents and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence PUBLIC WORKS AGREEMENT — Page 5 of 10 (October 11 2013) (between City of Bremerton and ThyssenKrupp ElevatorAmencas) IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS INDEMNIFICATION CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE TITLE 51 RCW, SOLELY FOR THE PURPOSE OF THIS INDEMNIFICATION THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER The provisions of this section shall survive the expiration or termination of this agreement 11. INSURANCE. The Contractor shall procure and maintain for the duration of this agreement, insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Contract work by the Contractor, its agents, representatives, employees or subcontractors Before beginning the work on the project described in this agreement, the Contractor shall provide a Certificate of Insurance evidencing A Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage, and B Commercial General Liability insurance written on an occurrence basis with limits no less than $2,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage Coverage shall include but not be limited to blanket contractual, products /completed operations/broad form property damage, explosion, collapse and underground (XCU) if applicable, and employer's liability Any payment of deductible or self insured retention shall be the sole responsibility of the Contractor The City reserves the right to receive a certified copy of all the required insurance policies The City, its officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of the Contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance The Contractor's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability The Contractor's insurance shall be primary insurance as respects the City, and the City shall be given thirty (30) calendar days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage PUBLIC WORKS AGREEMENT — Page 6 of 10 (October 11 2013) (between City of Bremerton and Thyssen Krupp Elevator Americas) If this contract requires work to be performed in or on navigable waters, the Contractor shall provide insurance written on an occurrence basis with limits no less than $2,000,000 combined single limit per occurrence and $2,000,000 aggregate for claims made under the Longshoreman and Harbor Workers Act and the Jones Act 12. MISCELLANEOUS. A Nondiscrimination In the hiring of employees for the performance of work under this Agreement or any sub - contract hereunder, the Contractor, its sub - contractors, or any person acting on behalf of such Contractor or sub - contractor shall not, by reason of race, religion, color, sex, national origin, or the presence of any sensory, mental, physical disability, or sexual orientation discriminate against any person who is qualified and available to perform the work to which the employment relates B Compliance with Laws Contractor shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this agreement C Work Performed at Contractor's Risk Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this agreement All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work D Nonwaiver of Breach The failure of the City to insist upon strict performance of any of the terms and rights contained herein, or to exercise any option herein conferred in one or more instances, shall not be constructed to be a waiver or relinquishment of those terms and rights and they shall remain in full force and effect E Governing Law This agreement shall be governed and construed in accordance with the laws of the State of Washington If any dispute arises between the City and Contractor under any of the provisions of this agreement, resolution of that dispute shall be available only through the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington F Attorney's Fees To the extent not inconsistent with RCW 39 04 240, in any claim or lawsuit for damages arising from the parties' performance of this agreement, each party shall be responsible for payment of its own legal costs and attorney's fees incurred in defending or bringing such i PUBLIC WORKS AGREEMENT — Page 7 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) I claim or lawsuit, however, nothing in this subsection shall limit the City's right to indemnification under Section 10 of this agreement G Written Notice All communications regarding this agreement shall be sent to the parties at the addresses listed on the signature page of this agreement, unless otherwise notified Any written notice shall become effective upon delivery, but in any event three (3) calendar days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated on this agreement H Assignment Any assignment of this agreement by the Contractor without the written consent of the City shall be void I Modification No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Contractor J Severability If any one or more sections, sub - sections, or sentences of this agreement are held to be unconstitutional or invalid, that decision shall not affect the validity of the remaining portion of this agreement and the remainder shall remain in full force and effect K Entire Agreement The written provisions and terms of this agreement, together with any attached Exhibits, supersede all prior verbal statements by any representative of the City, and those statements shall not be construed as forming a part of or altering in any manner this agreement This agreement and any attached Exhibits contain the entire agreement between the parties Should any language in any Exhibit to this agreement conflict with any language contained in this agreement, the terms of this agreement shall prevail IN WITNESS WHEREOF, the parties below have executed this agreement CONTRACTOR THE CITY OF BREMERTON Print Name Print Name Title Title DATE DATE Notices to be sent to: Notices to be sent to: CONTRACTOR CITY OF BREMERTON PUBLIC WORKS AGREEMENT — Page 8 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) Bremerton, WA 98337 (360) 473 -5323, (360) 473 -5200 fax PUBLIC WORKS AGREEMENT — Page 9 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) APPROVED AS TO FORM Bremerton City Attorney ATTEST Bremerton City Clerk R \ LEGAL \Contracts\FORMS \ShortForm PW Agr doc PUBLIC WORKS AGREEMENT — Page 10 of 10 (October 11 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) PREVAILING WAGES http / /www Im wa Rov/TradesLicensm revWage /default asp i I I I I i I AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT Professional Services Study Session Date October 9, 2013 Agreement with RiceFergusMiller Architects COUNCIL MEETING Date October 16, 2013 for Construction Administration of the Kitsap Department Public Works Conference Center Expansion Project Presenter Martin Phone 5758 SUMMARY This contract with RiceFergusMiller Architects is to provide construction administration services for the Kitsap Conference Center Expansion Project Staff recommends the construction administration service be provided by RFM because of this firm's substantial knowledge and experience with the project, including concept development, design work, and assembly of the bid package ATTACHMENTS Proposed contract FISCAL IMPACTS (Include Budgeted Amount) $30,000 within the project budget has been allocated for construction administration services STUDY SESSION AGENDA ❑ No Presentation 0 Full Presentation STUDY SESSION ACTION ❑ Consent Agenda ❑x General Business ❑ Public Hearing RECOMMENDED MOTION Move to authorize a professional services agreement with RiceFergusMiller Architects for construction administration services for the Kitsap Conference Center Expansion Project, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented COUNCIL ACTION ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/25/13 PROFESSIONAL SERVICES AGREEMENT Kitsap Conference Center Expansion Protect — Construction Administration Services The City of Bremerton ( "City ") and Rice Fergus Miller Architects ( "Consultant "), referred to collectively as the "Parties," enter into the following Agreement for professional services I. Scope of Work: The Consultant agrees to perform the services described as follows Construction administration services for the Kitsap Conference Center Expansion Project II. Term: The City and the Consultant agree that work will begin immediately upon execution of this Agreement, and continue for the duration of the Kitsap Conference Center Expansion Project, anticipated to be completed by March 31, 2013, provided however, that additional time shall be granted by the City for excusable delays or extra work as provided for in Section IX A of this agreement III. Compensation. In consideration of the services provided pursuant to this Agreement, the City shall pay Consultant in an amount not to exceed $30,000, excluding any applicable sales tax The Consultant shall submit regular billing statements detailing work performed and amount charged on each task or portion thereof The descriptions shall conform to and fall within the categories set out in the Scope of Work and/or Fee Schedule Upon receipt of a conforming billing statement, the City shall promptly process payment PROVIDED, HOWEVER, the City reserves the right to prioritize scoped work and accelerate and/or delay work tasks under the time frame set forth in Section II herein The Consultant's labor rates and billing fees shall be as delineated in Exhibit A Consultant shall not perform work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensation is modified pursuant to this Agreement Consultant shall only be compensated for additional services if requested pursuant to Section I and, if not otherwise provided, such compensation shall be in accordance with Exhibit A If a billing statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance Such withholding does not relieve Consultant of its obligations under this Agreement IV. Relationship of Parties: Consultant represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of expertise Consultant and its personnel are independent Consultants and not employees of the City Consultant and its personnel have no authority to bind the City or to control the City's employees and other Consultants None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub - Consultants of the Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project — Construction Administration Services Page 1 of 8 Consultant Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and sub - Consultants during the performance of this Agreement The City may, during the term of this Agreement, engage other independent Consultants to perform the same or similar work As an independent Consultant, Consultant is responsible for its own management The City's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Consultant or its personnel As an independent Consultant, Consultant is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement These taxes and fees include but are not limited to State industrial insurance, Business & Occupation, State professional licensing, and City business licensing If any taxes or fees due the City have been declared delinquent, the City may withhold the delinquent amount, plus any additional charges arising from the delinquency, from any payments due Consultant V Indemnification: Architects, Engineers and Any Other Professional Listed In and Performing Services Defined in RCW 4 24 115 Should a court of competent jurisdiction determine that Consultant's services provided pursuant to this Agreement is subject to RCW 4 24 115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER The provisions of this section shall survive the expiration or termination of this Agreement VI. Insurance: The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees, sub - consultants or sub - Consultants Before beginning work on the project described in this Agreement, the Consultant shall provide a Certificate of Insurance evidencing 1 Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage, and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project — Construction Administration Services Page 2 of 8 personal injury, bodily injury and property damage Coverage shall include but not be limited to blanket contractual, products /completed operations/broad form property damage, explosion, collapse and underground (XCU) if applicable, and employer's liability, and 3. Excess Liability insurance with limits not less than 1,000,000 limit per occurrence and aggregate 4. Professional Liability insurance with limits no less than $1,000,000 limit per occurrence /claim Any payment of deductible or self insured retention shall be the sole responsibility of the Consultant All required policies shall be provided on an "occurrence" basis except professional liability insurance (if required), which may be provided on a "claims- made" basis The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Consultant and a copy of an endorsement that is acceptable to the City, which names the City as an additional insured shall be attached to the Certificate of Insurance The City reserves the right to receive a certified copy of all the required insurance policies and endorsements The City further reserves the right to reject any unacceptable policies and/or endorsements The Consultant's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability The Consultant's insurance shall be primary insurance as respects the City and it shall be an affirmative obligation upon Consultant to advise the City's Risk Manager by fax at (360) 473- 5161, or by certified mail, return receipt requested to City of Bremerton, attn Risk Management, 345 6` Street, Suite 600, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change of any insurance policy set out herein, and failure to do so shall be construed to be a breach of this Agreement The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage VII. General Conditions: A Reports and Information When requested by the City, Consultant shall furnish periodic reports and documents on matters covered by this Agreement The reports and documents shall be furnished in the time and form requested Consultant shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed amounts Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project — Construction Administration Services Page 3 of 8 B Ownership and Use of Records and Documents Original documents, drawings, designs and reports, including those in electronic format, developed under this Agreement are the property of the City All written information submitted by the City to the Consultant in connection with the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like information relating to its own business If such information is publicly available or is already in Consultant's possession or known to it, or is rightfully obtained by the Consultant from third parties, Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise All data, documents and files created by Consultant under this Agreement may be stored at Consultant's office in Bremerton, Washington Consultant shall make such data, documents, and files available to the City upon its request at all reasonable times for the purpose of editing, modifying and updating as necessary until such time as the City is capable of storing such information in the City's offices Duplicate copies of this information shall be provided to the City upon its request, and at reasonable cost All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by Consultant pursuant to this Agreement, are instruments of service with respect to the project and are the property of the City Any reuse by the City for other than the specific purpose intended will be at City's sole risk C Work Performed at Consultant's Risk Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub - consultants in the performance of the work hereunder and shall utilize all protection necessary for that purpose All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work D Place of Work The Consultant shall perform the work authorized under this Agreement at its offices in Bremerton, Washington Meetings with the City staff as described in Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually agreed upon by the parties E Entire Agreement This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement F Severability Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect G Modification This Agreement may only be modified by written instrument signed by both Parties H Written Notices All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1st class mail, or by personal service, Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project — Construction Administration Services Page 4 of 8 and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing City Address Consultant Address 100 Oyster Bay Avenue N 275 Fifth Street, Suite 100 Bremerton, WA 98312 Bremerton, Washington 98337 I Waiver Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power J Non - Waiver of Breach The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect K Compliance with Laws Consultant shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement L Choice of Law and Venue This Agreement shall be interpreted according to the laws of the State of Washington Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court M Attorneys' Fees In the event of litigation to enforce any of the terms or provisions herein, each party shall pay all its own costs and attorney's fees N Assignment Any assignment of this agreement by the Contractor without the written consent of the City shall be void VIII. Nondiscrimination: Consultant shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, disability, or sexual orientation except for employment actions based on bona fide occupational qualification IX. Termination: This Agreement shall remain in force until completion and acceptance of the services, terminated by written instrument upon mutual consent, or by the City of Bremerton for convenience This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the terminating Party, and the non- performing Party does not commence correction of the failure of performance within thirty (30) days of the terminating Party's sending notice to the non - performing Party Any Notice by Consultant shall include a report showing the status of all items listed in the Scope of Work current through the termination date If the City receives reimbursement by any federal, state, or other source for work described in Section I herein, and that funding is withdrawn, reduced or limited in any way, or the project is Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project — Construction Administration Services Page 5 of 8 cancelled or substantially reduced after the execution date of this Agreement and prior to the completion of the work, the City may summarily terminate this Agreement A Excusable Delays The right of Consultant to proceed shall not be terminated nor shall Consultant be charged with liquidated damages for any delays in the completion of the work due to 1) any acts of the federal government in controlling, restricting, or requisitioning materials, equipment, tools, or labor by reason of war, national defense, or other national emergency, 2) any acts of the City, its consultants, or other public agencies causing such delay, and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity PROVIDED, HOWEVER, that the Consultant must promptly notify the City within ten (10) calendar days in writing of the cause of the delay If, on the basis of the facts and the terms of this Agreement, the delay is properly excusable, the City shall, in writing, extend the time for completing the work for a period of time commensurate with the period of excusable delay B Rights pon Termination In the event of termination, the City shall pay for all services performed by the Consultant to the effective date of termination, as described on a final invoice submitted to the City After termination, the City may take possession of all records and data within the Consultant's possession pertaining to this project which may be used by the City without restriction Any such use not related to the project which Consultant was contracted to perform shall be without liability or legal exposure to the Consultant X. Suspension & Debarment For contracts involving Federal funding, Consultant hereby certifies, by signing this agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency Consultant shall provide immediate written notice to the City if at any time it learns that it is or has become ineligible for certification Should Consultant enter into a covered transaction with another firm, Consultant agrees by signing this agreement that it will verify that the firm with whom it intends to do business is not debarred, suspended, ineligible, excluded or disqualified Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project — Construction Administration Services Page 6 of 8 CITY OF BREMERTON CONSULTANT By By its its Date Date Approved as to form Attest Bremerton City Attorney City Clerk Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project — Construction Administration Services Page 7 of 8 Exhibit A Labor Rates and Billing Fees Rice Fergus 1VLller 16 October 2013 Senior Principal in Charge $ 220 00 Project Manager $ 130 00 -$17000 Project Architect $ 9500 -$17000 Technical Designer / Production Support $ 8000 - $ 130 00 Interior Designer $ 7500 - $ 130 00 Marketing Staff $ 6500 - $ 100 00 Project Coordinator $ 8000 Administrative Staff $ 6500 -$10000 Graphics Visualization Staff $ 8000 - $ 140 00 l I i 1 i i Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project — Construction Administration Services Page 8 of 8 I ______________________________________________________________ CITY COUNCIL 345 6th Street, Suite 600, Bremerton, WA 98337 - Phone (360) 473-5280 OCTOBER 16, 2013 CITY COUNCIL MEETING AGENDA 1. BRIEFING: 5:00 to 5:30 P.M. in COUNCIL CONFERENCE ROOM 603 A. General Council Business 2. CALL TO ORDER: 5:30 P.M. in FIRST FLOOR CHAMBERS 3. MAYOR'S REPORT (Approx. 10-Minutes) 4. INFORMATION ITEMS A. Bremerton Police Department Monthly Update – Police Chief Steve Strachan B. 3rd Quarter Report from Kitsap Economic Development Alliance (KEDA) – John Powers, Executive Director, Kitsap Economic Development Alliance 5. PUBLIC RECOGNITION 6. CONSENT AGENDA A. Claims and Check Registers B. Minutes of Meeting – October 2, 2013 C. Minutes of Budget Workshop – October 7, 2013 D. Minutes of Study Session – October 9, 2013 E. Ordinance No. 5225 amending Chapter 9.24 of the Bremerton Municipal Code (BMC) entitled "Prostitution"; and creating a new section Chapter 9.24.060 relating to "Loitering" F. Contract Award to Lakeside Industries for Construction of the Belfair Valley Road and Lake Flora Road Preservation Project G. Authorizing transfer of $40,000 in Real Estate Excise Tax (REET) to the General Fund; and approving contract with King County Directors Association (KCDA) for Pendergast Ball Field Drainage Improvements 7. GENERAL BUSINESS A. Overview of Kitsap Conference Center Expansion Project Implementation (Items 7B –7F) B. Interlocal Agreement with the Kitsap Public Facilities District (KPFD) for Funding of the Kitsap Conference Center Expansion Project C. Lease Agreement with Kitsap Transit for the Expansion of the Kitsap Conference Center D. Contract Award to Jones & Roberts, Inc. for Construction of the Kitsap Conference Center Expansion Project E. Contract Award to ThyssenKrupp Elevator Americas for Elevator Improvements related to the Kitsap Conference Center Expansion Project F. Professional Services Agreement with RiceFergusMiller Architects for Construction Administration Services of the Kitsap Conference Center Expansion Project 8. COUNCIL MEMBER REPORTS 9. ADJOURNMENT OF CITY COUNCIL BUSINESS MEETING Americans with Disabilities Act (ADA) accommodations provided upon request. Those requiring special accommodations please contact the City Clerk at (360) 473-5323 by noon on the day preceding the Meeting. AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Claims & Check Register Study Session Date: COUNCIL MEETING Date: October 16, 2013 Department: Financial Services Presenter: Shannon Corin Phone: 473-5323 SUMMARY: Approval of the following checks and electronic fund transfers: 1) Check #’s 355426 through 355633 and EFT’s 13236 through 13272 in the amount of $2,077,470.60. 2) Regular Payroll for the pay period ending September 30, 2013 in the amount of $685,505.16. ATTACHMENTS: FISCAL IMPACTS (Include Budgeted Amount): STUDY SESSION AGENDA: ☒ No Discussion ☐ Full Presentation STUDY SESSION ACTION: ☒ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve consent agenda as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/02/12 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Minutes of Meeting – October 2, 2013 Study Session Date: COUNCIL MEETING Date: October 16, 2013 Department: City Council Presenter: Greg Wheeler Council President Phone: (360) 473-5280 SUMMARY: Attached is the summary of the City Council Meeting ATTACHMENTS: Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount): STUDY SESSION AGENDA: ☒ No Presentation ☐ Full Presentation STUDY SESSION ACTION: ☒ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Consent Agenda as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/25/13 DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, October 2, 2013 The Regular Meeting of the City Council of the City of Bremerton was called to order on Wednesday, October 2, 2013, at 5:00 PM in Council Conference Room 603 of the NORM DICKS GOVERNMENT CENTER, 345 6th Street, Bremerton, Washington, with Council President Greg Wheeler presiding. Council Members present were Nick Wofford, Eric Younger, Carol Arends, Faye Flemister, Adam Brockus, Leslie Daugs, and Jim McDonald. Council Member Wendy Priest was absent. Also present were City Attorney Roger Lubovich; City Clerk Shannon Corin; Legislative Assistant Lori Smith; and Information Services Manager Kevin Matthew. A COUNCIL BRIEFING was held to discuss General Council Business at 5:00 PM in the Council Conference Room, immediately following was the Council Meeting at 5:30 PM. The Pledge of Allegiance was led by Council Member Jim McDonald followed by the invocation provided by Pastor Kyle Archibald of Voyage. President Wheeler announced that the screen is still being repaired and will not be working for tonight’s meeting. MAYOR’S REPORT – Mayor Patty Lent…  Was pleased to present the Washington Finance Officers Association (W FOA) “Distinguished Budget Presentation Award” for the City’s Annual Budget Document for 2013 to Financial Services Director Becky Hasart and Financial Analyst Caroline Tompson;  Invited the community to attend the Dispute Resolution Center’s “Justice for All” Celebration on Thursday, October 3 from 6:00 to 9:00 PM at the Kitsap Conference Center;  Announced that Goodwill will be providing free back-to-work classes and training courses from October 14 through December 5;  Proclaimed the Month of October, 2013 as “Breast Cancer Awareness Month”;  Announced that the City of Bremerton will participate in a Statewide Earthquake Drill and encourages everyone to “Drop-Cover-Hold” on Thursday, October 17 at exactly 10:17 AM; and  Introduced Stacy Dore, of the Boys & Girls Club of South Puget Sound, who invited everyone to the Bremerton Teen Center Dedication Ceremony at the Youth Wellness Campus on Friday, October 18 at 3:30 PM. BRIEFINGS Wyn Birkenthal Parks & Recreation Director, introduced Kaleen Cottingham, Washington State Recreation & Conservation Office (RCO) Director, who presented a Bravo Award to the City of Bremerton for its Number 1 ranking in the Washington Wildlife & Recreation Program for the Evergreen Rotary Park Inclusive (Beyond Accessible Play) Playground Project. President Wheeler announced that John Powers, KEDA Executive Director postponed a briefing on the 3rd Quarter KEDA Report until the next Council Meeting on October 16, 2013. Cary Bozeman, Chair of the Bremerton Parks & Recreation Funding Task Force Committee summarized the work of the Committee. PUBLIC RECOGNITION Mike Walton, Kitsap Family YMCA Community Marketing Director, highlighted upcoming events and programs at the “Y” in Bremerton. City Council Mtg. Minutes Wednesday, October 2, 2013 Page 2 of 4 Bishop Larry Robertson, Pastor of Emmanuel Apostolic Church, looked forward to celebrating the opening of the Bremerton Boys & Girls Club Teen Center, and believes what they’ve done for the community is outstanding. Debby Hughes of RIES Productions, LLC was pleased to announce their company has located to Bremerton where they will continue to produce quality tripods just as they always have since 1936. Deena Taylor of Sliced by Light also has located her new business in Bremerton in the old Skookum Building where her company will utilize art laser technology to “create unique and personalized” products. April Mills thanked everyone involved with bringing the Beyond Accessible Playground Project to Bremerton. Stuart Walton with KCR and the Business Education & Support Training (B.E.S.T.) Program, thanked the City for their vote of confidence in their program, and along with the Asset Building Coalition of Kitsap, invited the community to the 5th Annual Financial Fair on Saturday, November 2 from 9:30 AM to 1:30 PM at Kitsap Community Resources located at 845 8th Street. CONSENT AGENDA 6A – Claims & Check Register: Check Numbers 355253 through 355425, and EFT-13190 through EFT-13235 in the amount of $2,427,754.46; and Retiree Payroll for the pay period ending, September 30, 2013 in the amount of $56,227.27. . 6B – Minutes of Meeting – September 18, 2013 6C – Minutes of Study Session – September 25, 2013 6D – Resolution No. 3203 to approve the Interlocal Agreement to adopt the Association of Washington Cities (AWC) Health Care Program 6E – Resolution No. 3204 to establish November 6, 2013 as a Hearing Date to vacate portions of the alley and 4th Street for the Park Plaza Project 6F – Contract Award to IMCO General Construction, Inc. for the Construction of the Warren Avenue Bridge Water Main Replacement Project There were no questions or comments from the public… 06:14:15 M/S/C/U (Flemister/Arends) Move to approve the CONSENT AGENDA as presented. PUBLIC HEARINGS 7A – 2ND OF 2 PUBLIC HEARINGS TO APPROVE LETTER OF AGREEMENT AND LEASE FOR PENDERGAST PARK SOCCER FIELD WITH WEST SOUND FC PREMIER SOCCER CLUB: Wyn Birkenthal, Parks & Recreation Director, explained that the Pendergast Soccer Fields have been an underused asset since they were constructed in the 1990’s. West Sound FC has agreed to make artificial turf improvements to the two fields in return for a lease allowing West Sound FC to collect revenue from field scheduling once the turf is installed. Additionally, the City would receive $13,537.00 per year in compensation and maintenance fees for the duration of the agreement; and the payment amount will be adjusted for inflation. Public use of the fields is guaranteed under Section 2.1 of the lease. President Wheeler opened the public hearing… City Council Mtg. Minutes Wednesday, October 2, 2013 Page 3 of 4 Comments in support from the public were provided by Patricia Graf-Hoke Executive Director of Visit Kitsap Peninsula; John H. Larson, Chair of the Bremerton Parks Commission (who submitted a report from the Parks Commission); Steve Vonheeder, President of the Bremerton Soccer Club;; Brandon Kluk, President of FC Crush Soccer Academy, David Connolly, WestSound FC Soccer Coach; and Dennis Michaels, One of the owners of Olympic Soccer & Sports Club; and George Vukic, WestSound FC Director of Coaching. Also, a majority of the members in the audience stood in favor of this action at President Wheeler’s inquiry; and Mr. Birkenthal displayed the artist’s rendering of what the fields will look like. With no further public comments, President Wheeler closed the public hearing and noted that Council comments will be provided at the second hearing… GENERAL BUSINESS 8A – ORDINANCE NO. 5224 TO ESTABLISH A FISCAL POLICY REGARDING THE USE OF UTILITY TAX REVENUE AND PAYMENT IN LIEU OF PROPERTY TAX (PILOT): Becky Hasart, Financial Services Director, explained that the City currently assesses both a utility tax (9.5% for water; and $14% for wastewater and stormwater) and a PILOT tax (6% for all three utilities). These taxes are a revenue stream to the General Fund. The attached ordinance would establish a fiscal policy that would cap the general fund revenue from this stream to the amount of 2013 actual receipts and redirect any future year increases in this revenue stream to the street fund. Comments from the public were provided by… 06:28:20 Motion was made by Younger; and seconded by McDonald… Comments were provided by Younger, Wofford, Daugs, McDonald, and Wheeler… 06:34:45 M/S/C/U (Younger/McDonald) Move to approve Ordinance No. 5224 of the City Council of the City of Bremerton, Washington, establishing a fiscal policy regarding the use of utility tax revenue and payment in lieu of property tax (PILOT) revenue assessed against City of Bremerton owned water, wastewater, and stormwater utility revenues. COUNCIL MEMBER REPORTS Jim McDonald thought this was the happiest meeting he has attended, and was pleased to see the community so excited about the improvements at Evergreen Rotary Park and the soccer fields at Pendergast Park. Leslie Daugs thanked the volunteers Kitsap Habitat of Humanity for providing the supplies and meals for the volunteers of the improvements at Matan Park; invited the community to the Teen Center Grand Opening; and congratulated the Seahawks for their win over the Houston, Texans. Adam Brockus announced the next District 3 Meeting would feature a program to “Meet the Candidates” on Tuesday, October 22 from 6:30 to 8:00 PM at the Senior Center located at East 13th Street & Nipsic Avenue; invited the community to the Manette Neighborhood Coalition Harvest Festival on Saturday, October 12; was pleased a new tenant has been found for the previous location of Kate’s Jersey Subs; and said anyone affected by the Government Shutdown were in our hearts and prayers. Faye Flemister thanked the Parks Funding Task Force for their work; reminded the public about the upcoming Gateway Clean-up Project was looking for volunteers on Saturday, October 26 at 9:00 AM; and welcomed all of the new businesses joining the Charleston Business District. City Council Mtg. Minutes Wednesday, October 2, 2013 Page 4 of 4 Carol Arends agreed that a lot of positive things are happening in Charleston; which she was pleased to see. Nick Wofford looked forward to the progress planned for SKIA next year. Greg Wheeler agreed with Council Member McDonald that there were a lot of fun things brought to the Council tonight; and announced that the City would be holding a Budget Workshop on Monday, October 7 from 4:00 to 7:00 PM in the Council Conference Room. EXECUTIVE SESSION – Council convened for a 30-Minute Executive Session from 6:45 to 7:15 PM to discuss “Potential Litigation” per RCW 42.30.110 (1) (i); with action. 07:15:28 (M/S/C/U) Move to authorize the City Attorney to take legal action to foreclose on certain property within ULID 2002-01, the owners of which are delinquent in paying the required assessment. 07:15:50 (M/S/C/U) Move to authorize the City Attorney to take legal action, including filing a lawsuit, related to Code Violations at 649 and 653 Washington Avenue. 07:17:06 (M/S/C/U) Move to authorize the City Attorney to enter into an amendment to the NPDES Coalition Interlocal Agreement in substantially the same form as presented to Council and to pay an additional $10,000 for legal services and litigation costs for the appeal. W ith no further business, President Wheeler adjourned the Council Meeting at 7:18 PM. Prepared and Submitted by: ______________________________ LORI SMITH Legislative Assistant Attest: ________________________________________ SHANNON CORIN, City Clerk ________________________________________ GREG WHEELER, City Council President GW :SC:ls:cg AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Minutes of Budget Workshop – October 7, 2013 Study Session Date: COUNCIL MEETING Date: October 16, 2013 Department: City Council Presenter: Greg Wheeler Council President Phone: (360) 473-5280 SUMMARY: Attached is the summary of the City Council Meeting ATTACHMENTS: Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount): STUDY SESSION AGENDA: ☒ No Presentation ☐ Full Presentation STUDY SESSION ACTION: ☒ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Consent Agenda as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/25/13 DIGITAL RECORDING CITY COUNCIL BUDGET WORKSHOP MINUTES Monday, October 7, 2013 The Budget Workshop of the City Council of the City of Bremerton was called to order in the First Floor Meeting Chambers of the DICKS GOVERNMENT CENTER located at 345 6th Street, Bremerton, Washington, Monday, October 7, 2013, at 4:00 PM, with Council President Greg Wheeler presiding. Council members present were Nick Wofford, Eric Younger, Faye Flemister, Adam Brockus, Leslie Daugs, and Jim McDonald. Council Members Wendy Priest and Carol Arends were absent. Also present were Finance Director Becky Hasart and Budget Analyst Caroline Tompson. Legislative Assistant Lori Smith was present to provide staff support to the Council. President Wheeler announced that the 2014 Budget Workshop was for the Council to hear presentations on the proposed budget. It was further announced that this Budget Workshop was open to the public, but there would be no opportunities for input or participation; that no action will be taken, and the content of these items is subject to change. Becky Hasart, Financial Services Director, opened the 2014 Budget Process; bringing forward each respective Director to present an over view of their Fund & Department Budgets: 1. Council/Legislative Department 2. Executive Department 3. Legal & Risk Management 4. DCD 5. Municipal Court 6. Auditor 7. Finance Department - Including City Clerk; HR; BKAT; IT; Fire & Police Pension; Non Departmental; Contingency Reserve; Parking; Conference Center; Gold Mountain; Debt Service; REET; and Accumulated Leave & Employment Security 8. Law Enforcement 9. Fire & EMS 10. Parks – Including General Fund and Capital 11. Public Works & Utilities With no further business, President Wheeler adjourned the Budget Workshop at 6:30 PM. Prepared and Submitted by: ______________________________ LORI SMITH Legislative Assistant Attest: _____________________________________ SHANNON CORIN, City Clerk _____________________________________ GREG WHEELER, City Council President GW :SC:ls:cg AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Minutes of Study Session – October 9, 2013 Study Session Date: COUNCIL MEETING Date: October 16, 2013 Department: City Council Presenter: Greg Wheeler Council President Phone: (360) 473-5280 SUMMARY: Attached is the summary of the City Council Meeting ATTACHMENTS: Meeting Minutes FISCAL IMPACTS (Include Budgeted Amount): STUDY SESSION AGENDA: ☒ No Presentation ☐ Full Presentation STUDY SESSION ACTION: ☒ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Consent Agenda as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/25/13 DIGITAL RECORDING CITY COUNCIL STUDY SESSION MINUTES Wednesday, October 9, 2013 A Study Session of the City Council of the City of Bremerton was called to order in the Council Conference Room of the NORM DICKS GOVERNMENT CENTER, 345 6th Street, Bremerton, Washington, Wednesday, October 9, 2013, at 5:00 PM, with Council President Greg Wheeler presiding. Council Members present were Nick Wofford, Eric Younger, Carol Arends, Faye Flemister, Adam Brockus, and Jim McDonald. Council Members Leslie Daugs and Wendy Priest were absent. Legislative Assistant Lori Smith was present to provide staff support. President Wheeler emphasized that the Study Session was open to the public but there would be no opportunities for input or participation; and announced that approved items by Council will be placed on the October 16, 2013 Council Meeting Agenda or as indicated. INFORMATION ITEMS 1. 2013 United Way Campaign Briefing – Shannon Corin, City Clerk Information only A. NO PRESENTATION ITEMS – The following items are budgeted items or have already been reviewed by the appropriate Council Committee: 2. Ordinance to amend Chapter 9.24 of the Bremerton Municipal Code (BMC) entitled “Prostitution“; and creating a new section relating to “Loitering” Consent Agenda 3. Contract Award for Construction of the Belfair Valley Road and Lake Flora Road Preservation Project (Bids were opened on October 7) Consent Agenda B. FULL PRESENTATION ITEMS 4. Authorizing transfer of $40,000 in Real Estate Excise Tax (REET) to the General Fund; and approving contract with King County Directors Association (KCDA) for Pendergast Ball Field Drainage Improvements Consent Agenda The following items were discussed together under one presentation… 5. Lease Agreement with Kitsap Transit for the Expansion of the Kitsap Conference Center General Business 6. Interlocal Agreement with the Kitsap Public Facilities District (KPFD) for funding of the Kitsap Conference Center Expansion Project General Business 7. Professional Services Agreement with RiceFergusMiller Architects for Construction Administration Services for the Kitsap Conference Expansion Project General Business 8. Contract Award to ThyssenKrupp Elevators Americas for Elevator Improvements related to the Kitsap Conference Center Expansion Project General Business 9. Contract Award to Jones & Roberts, Inc. for Construction of the Kitsap Conference Center Expansion Project General Business C. GENERAL COUNCIL BUSINESS o Public Works Committee Briefing (10/08/13 Meeting) – Adam Brockus, Chair o Other General Council Business was briefly discussed. D. ADJOURNMENT OF STUDY SESSION City Council Study Session Minutes Wednesday, October 9, 2013 Page 2 of 2 With no further business, President Wheeler adjourned the Council Study Session at 7:17 PM. Prepared and Submitted by: ______________________________ LORI SMITH Legislative Assistant Attest: ________________________________________ SHANNON CORIN, City Clerk ________________________________________ GREG WHEELER, City Council President GW :SC:ls:cg AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Ordinance No. 5225 amending Chapter 9.24 of the Bremerton Municipal Code Study Session Date: October 9, 2013 COUNCIL MEETING Date: October 16, 2013 Department: City Attorney’s Office Presenter: Roger A. Lubovich Phone: 473-2345 SUMMARY: The proposed ordinance amends Chapter 9.24 of the Bremerton Municipal code by creating a new section relating to loitering and solicitation and makes other related amendments. ATTACHMENTS: Ordinance No. 5225 FISCAL IMPACTS (Include Budgeted Amount): none STUDY SESSION AGENDA: ☒ No Presentation ☐ Full Presentation STUDY SESSION ACTION: ☒ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance No. 5225 making amendments to Chapter 9.24 of the Bremerton Municipal Code. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/02/12 1 Chapter 9.24 Loitering & Solicitation ORDINANCE NO. 5225 AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Chapter 9.24 of the Bremerton Municipal Code entitled “Prostitution” creating a new section relating to loitering and making related amendments. WHEREAS, the City Council desires to amend Chapter 9.24 of the Bremerton Municipal Code entitled “Prostitution” relating to loitering and make related amendments; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 9.24 of the Bremerton Municipal Code entitled "Prostitution " is hereby amended to read as follows: Chapter 9.24 PROSTITUTION 9.24.010 DEFINITIONS. As used in this chapter: (a) "Known prostitute or promoter of prostitution" means a person who, within one year previous to the date of arrest for violation of this chapter, has, within the knowledge of the arresting officer, been convicted in any court of an offense involving prostitution. (b) "Prostitution" means to engage in conduct proscribed in Section 9.24.020. (c) "Public place" is an area generally visible to public view, including, but not limited to, streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles, buildings open to the public including those which serve food and/or drink, doorways and entrances to buildings not open to the general public, but which are open to a certain class or group of the general public through the use of club membership or affiliations with a club or organization, including, but not limited to, the United States Armed Forces. 9.24.020 PROSTITUTION PROHIBITED. (a) It is unlawful for any person to engage in, or agree to engage in, or offer to engage in, sexual conduct with another person in return for any form of compensation. (b) For purposes of this chapter "sexual conduct" means sexual intercourse as defined in RCW 9A.44.010(1) or sexual contact as defined in RCW 9A.44.010(2). 9.24.040 PATRONIZING A PROSTITUTE PROHIBITED. It is unlawful for any person to patronize a prostitute. A person is guilty of patronizing a prostitute if: (a) Pursuant to a prior understanding or agreement he or she pays any form of compensation to another person in exchange for such person or for a third person, to engage in sexual conduct with him or her; or 2 Chapter 9.24 Loitering & Solicitation (b) He or she pays or agrees to pay any form of compensation to another person pursuant to an understanding or agreement that, in return therefor, such person will engage in sexual conduct with him or her; or (c) He or she solicits or requests another person to engage in sexual conduct with him or her for any form of compensation. 9.24.050 PERMITTING PROSTITUTION PROHIBITED. It is unlawful for any person to permit prostitution in or on premises which are in his or her possession and/or control. A person is guilty of permitting prostitution if, having possession or control of premises which he or she knows, or should know, are being used for prostitution purposes, he or she fails to make a reasonable effort to halt or abate such use. 9.24.060 SOLICITING OR LOITERING FOR PROSTITUTION PROHIBITED WHEN. It is unlawful for any person to remain in a public place and intentionally solicit, induce, entice or procure another to commit an act of prostitution. Among the circumstances which may be considered in determining if such prohibited conduct is intended are: (a) If the actor repeatedly beckons to, stops, or attempts to stop, or engages passes-by in conversation; or (b) Repeatedly stops or attempts to stop motor vehicles; or (c) Is a known prostitute or promoter of prostitution. (a) Solicitation. It is unlawful for any person to intentionally solicit, induce, entice or procure another to commit an act of prostitution. (b) Loitering. It shall be unlawful for any person to loiter in or near any public place in any manner and under circumstances manifesting the purpose of committing, or inducing, enticing, soliciting or procuring another to permit an act of prostitution. (c) Among the circumstances which may be considered in determining whether solicitation or loitering is intended are if the actor: (1) Repeatedly beckons to, stops, or attempts to stop, or engages passes-by in conversation; (2) Repeatedly stops or attempts to stop motor vehicles; (3) Is a known prostitute or promoter of prostitution; and/or (4) Attempts to detect or identify a police officer, peace officer, or other law enforcement officer, during an investigation into prohibited conduct in this Chapter, by any of the following means: (i) exposing or offering to expose one's breast or breasts, buttocks, sexual organs or private body parts; (ii) requesting, asking or encouraging another to touch or fondle one's breast or breasts, buttocks, sexual organs or private body parts; (iii) touching or requesting to touch the breast, breasts, buttocks, sexual organs or private body parts of another; (iv) requesting, asking or encouraging another to expose or show the other's breasts, buttocks, sexual organs or private body parts; (v) inquiring whether a potential patron, procurer or prostitute is a police officer; or (vi) searching for articles that would identify a police officer. 3 Chapter 9.24 Loitering & Solicitation 9.24.070 DEFENSE. It shall not be a defense to any in violation of this chapter that the sex of the parties or prospective parties to an act of prostitution or contemplated act of prostitution is are of the same sex. Further, it shall not be a defense to any act inviolation of this chapter that the person who received, agreed to receive or solicited a fee was male, and the person who paid or agreed to pay such fee was female. 9.24.072 080 STAY OUT OF AREAS OF PROSTITUTION ORDERS. (a) Stay Out of Areas of Prostitution orders, hereinafter designated as SOAP orders, may be issued by the Bremerton Municipal Court to anyone charged with any offense defined in this chapter as a condition of pre-trial release. (1) Any individual arrested or charged with any offense defined in this chapter, shall appear for a hearing before the Bremerton Municipal Court to show cause why a SOAP order should not be issued as a condition of pre-trial release. (2) At the time the individual is arrested or charged with any offense under this chapter, the individual shall be issued a RELEASE FROM CUSTODY AFTER ARREST form, to be signed by the individual, acknowledging the following: (i) The date and time of hearing; (ii) The designated areas of the City the individual will be ordered to stay out of by the SOAP order; (iii) The penalties for violating a SOAP order; (iv) That if the individual fails to appear at the hearing or fails to show good cause why the order shouldn’t be entered, the SOAP order will be entered. (3) Any individual charged with an offense under this chapter shall have the right to a single one-week continuance of said hearing for good-cause shown. (4) If the individual fails to show cause why the SOAP order shouldn’t be entered, the SOAP order shall be entered pending trial. (5) If the individual fails to appear at said hearing, the SOAP order shall be entered pending trial. (b) SOAP orders may be issued by the Bremerton Municipal Court to anyone convicted of any offense defined in this chapter. (c) SOAP orders may order the person named in the order to stay out of the following described areas of the City designated to be anti-prostitution emphasis areas in order to assure elimination of all prostitution and prostitution-related activity within these areas: (1) The entire area extending from the 100 block to the 900 block of North Callow Avenue, and one block east and west of this area of North Callow Avenue; and (2) The entire area extending from the 100 block to the 2500 block of 6th Street, and one block north and south of this area of 6th Street; and (3) The entire area extending from the 600 block to the 1100 block of Park Avenue, and one block east and west of this area of Park Avenue including Evergreen Park; and (4) The entire area extending from the 300 block to the 1100 block of Warren Avenue, and one block east and west of this area of Warren Avenue. (5) Any other area found by the Judge of the Municipal Court to warrant designation as an anti-prostitution emphasis area when specifically set forth and identified in a court order naming a particular defendant. 4 Chapter 9.24 Loitering & Solicitation 9.24.074 090 VIOLATION OF CONDITION OF RELEASE OR PROBATION. The presence of any person within an anti-prostitution emphasis area in violation of court-imposed conditions of release or conditions of suspension, diversion or deferral of any sentence shall constitute a separate crime hereby designated a gross misdemeanor and any such person may be apprehended and arrested without the necessity for any warrant or additional court order. Upon conviction, any person so violating the conditions of release or conditions of suspension or deferral shall be punished by imprisonment in jail for a maximum term fixed by the court of not more than one (1) year, or by a fine in an amount fixed by the court of not more than Five Thousand Dollars ($5,000.00), or by both such imprisonment and fine. 9.24.080 100 VIOLATIONS OF SECTIONS 9.24.020 THROUGH 9.24.070 - PENALTY. Any person violating any of the provisions of Sections 9.24.020 through 9.24.070this chapter shall be guilty of a misdemeanor as defined in BMC 1.12.020(2). SECTION 2. Severability. If any one or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect. SECTION 3. Effective Date. This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. PASSED by the City Council the___________ day of ____________________, 2013 _________________________________ GREG WHEELER, Council President Approved this ________ day of ________________________, 2013 _________________________________ PATTY LENT, Mayor ATTEST: APPROVED AS TO FORM: __________________________________ ________________________________ SHANNON CORIN, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the________ day of ______________________, 2013 EFFECTIVE the_________day of ______________________, 2013 ORDINANCE NO. ____________ R:\Legal\Legal\Ordinances\Police\BMC 9.24 Loitering & Solicitation-Final.docx AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Contract Award to Lakeside Industries for Construction of the Belfair Valley Road and Lake Flora Road Preservation Project Study Session Date: October 9, 2013 COUNCIL MEETING Date: October 16, 2013 Department: PW & U Presenter: Chal Martin Phone: 360.473.5758 SUMMARY: The City received Puget Sound Regional Council (PSRC) funding for pavement preservation on Belfair Valley and Lake Flora Roads. The project will be an overlay of both roadways using a fiber reinforcement in the asphalt with minimal roadway repairs. The City advertised the project on September 16th and received 5 bids on October 7th. The apparent low, responsive, responsible bidder was Lakeside Industries for $382,918.00 including sales tax. ATTACHMENTS: 1) Contract; 2) Bid Tabulation FISCAL IMPACTS (Include Budgeted Amount): The project is included in the Street Fund; the 2013 budget is $450,000. The project is funded by a $389,250 grant from the PSRC, with a 13.5% City match of $60,750 from the Street fund. No Transportation Benefit District (TBD) funds are used in this project. STUDY SESSION AGENDA: ☒ No Presentation ☐ Full Presentation STUDY SESSION ACTION: ☒ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve award of the contract for the Belfair Valley Road and Lake Flora Road Preservation Project and authorize the Mayor to finalize and execute the agreement with Lakeside Industries, in the amount of $382,918.00 with substantially the same terms and conditions as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/02/12 LOCAL AGENCY CONTRACT – HIGHWAY CONSTRUCTION SCHEDULE A - ROADWAY ITEM NO.SPEC DESCRIPTION OF ITEM EST QUANTITY UNIT UNIT PRICE AMOUNT 1 1-04 MINOR CHANGE 1 EST $5,000.00 $5,000.00 2 1-07 SPCC PLAN 1 LS $1,000.00 $1,000.00 3 1-09 MOBILIZATION 1 LS $25,000.00 $25,000.00 4 1-10 PROJECT TEMPORARY TRAFFIC CONTROL 1 LS $10,000.00 $10,000.00 5 2-01 ROADSIDE CLEANUP 1 FA $1.00 $1.00 6 2-11 TRIMMING AND CLEANUP 1 LS $10,000.00 $10,000.00 7 4-04 CRUSHED SURFACING TOP COURSE 470 TON $30.00 $14,100.00 8 SP 5-04 FIBER REINFORCED HMA CL. 1/2 IN. PG 64-22 3,300 TON $115.00 $379,500.00 9 SP 5-04 PAVEMENT REPAIR 100 SY $60.00 $6,000.00 10 5-04 PLANING BITUMINOUS PAVEMENT 560 SY $10.00 $5,600.00 11 8-22 PAINT LINE 78000 LF $0.17 $13,260.00 TOTAL CONSTRUCTION COST $469,461.00 Belfair Valley and Lake Flora Roads Preservation Project BID TABULATION ENGINEER'S ESTIMATE 10/10/2013 1 Parametrix AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Pendergast Ball Field Drainage Improvements Study Session Date: Oct. 9 2013 COUNCIL MEETING Date: Oct. 16 2013 Department: Parks and Recreation Presenter: Wyn Birkenthal Phone: 473-5752 SUMMARY: Improvement to ball field drainage at Pendergast Park to support league and tournament softball play which is the Park Department’s largest single revenue generating program. Ponding and soft outfield turf at field number 2 has resulted in cancellation of tournaments and city league games. Additionally, poor drainage causes staff to spend an inordinate amount of hours attempting to bring the field to a safe, playable condition following rainy weather. The $40,000 transfer of real estate excise tax (REET) will fund installation of sub-surface drains including perforated pipe placed in sand filled trenches spaced every 15 feet. The work will be performed by Greenshield Systems LLC under a contract with the King County Directors Association (KCDA). KCDA is a non-profit purchasing co-op used by municipalities and school districts to obtain volume pricing on goods and services. Performing these improvements in the Fall season will allow the field to recover in time for the Spring softball season. ATTACHMENTS: “A” Contract KCDA for Field Improvements; “B” Greenshield Systems LLC Quote & KCDA Contract Pricing; and “C” KCDA Purchasing Cooperative Agreement with Greenshield Systems LLC. FISCAL IMPACTS (Include Budgeted Amount): Upon transfer of $40,000 from REET to the General Fund, adequate funding will be available for the proposed improvements. There are adequate available funds in REET for this transfer and it will be included in the year-end budget amendment. STUDY SESSION AGENDA: ☐ No Presentation ☒ Full Presentation STUDY SESSION ACTION: ☒ Consent Agenda ☐ General Business ☐ Public Hearing RECOMMENDED MOTION: I move to authorize the transfer of $40,000 of real estate excise tax (REET) to the General Fund and authorize the Director of Park and Recreation to purchase services for improvement to ball field drainage at Pendergast Park from Greensfield Systems LLC through Kitsap County Directors Association (KCDA) purchasing cooperative. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/25/13 AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Overview, Kitsap Conference Center Expansion Project Implementation, Agreements, Lease and Contracts Study Session Date: N/A COUNCIL MEETING Date: October 16, 2013 Department: PW&U Presenter: Martin Phone: X 5758 SUMMARY: The agenda bills following this introductory presentation provide the necessary instruments to implement the Kitsap Conference Center Expansion project. Those necessary instruments are: 1. Interlocal Agreement with the Kitsap Public Facilities District 2. Lease Agreement with Kitsap Transit 3. Contract Award to Jones & Roberts, Inc. for the Conference Center construction Contract 4. Award to ThyssenKrupp Elevator Americas for elevator improvements 5. Professional Services Agreement with RiceFergusMiller Architects for construction administration ATTACHMENTS: 1. Project Milestones 2. Project Budget and Financing Overview 3. Lease Impacts for the City of Bremerton 4. Sales Tax Summary FISCAL IMPACTS (Include Budgeted Amount): This $1.1 million economic development project will be paid for with $600,000 of grant/outside funding and $500,000 of City funds. It will generate revenue adequate to defray the expenses associated with the City’s investment, and will provide a moderate direct return on investment. STUDY SESSION AGENDA: ☐ No Presentation ☐ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☒ General Business ☐ Public Hearing RECOMMENDED MOTION: N/A. Agenda bills following will provide information specific to each element of the project implementing, agreements, lease and contracts. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/02/12 _____________________________________________________________________________ Public Works & Utilities │ 100 Oyster Bay Ave. N., Bremerton, WA 98312 * Phone (360) 473-5315 * Fax (360) 473-5018 Conference Center (And Elevator) Design / Bid / Construction Milestones Updated October 9, 2013 (strike-through indicates milestones have been completed)  Submit agenda item for July 10th Council Study Session – Monday, July 1st, 12:00 noon  Finalize statement of work/contract – Wednesday, July 3rd, 11:00 a.m.  Council considers professional services contract – Wednesday, July 10th  Authorization to proceed – Thursday, July 11th  Kickoff meeting, offices of Rice Fergus Miller, 10:00 a.m. – Thursday, July 11th  Release Elevator RFP – Wednesday, August 21st  Elevator RFP Site Visit – Wednesday, August 28th and Thursday, August 29th  Bid Conference Center Project – Friday, September 6th (or early the following week)  Open Elevator RFP Proposals – Friday, September 13th  Kitsap Transit Board Meeting – Tuesday, September 17th o Executive Director to brief Board on preliminary Elevator RFP results  Submit PFD Agreement for Council Approval – Wednesday, September 18, 12:00 p.m. o Note: this agreement still needs to be finaled – draft only as of 10/9/13  Tentative Selection, Elevator Contractor – Friday, September 20 (N/A since only 1 bid)  Open Bids Conference Center – Monday, September 30th (14 bids received)  Submit docs for Bremerton City Council approval – Wednesday, October 2nd, 12:00 p.m. o City of Bremerton / Kitsap Transit Lease Agreement o Conference Center Bid Award o Conference Center Construction Contract o Conference Center Construction Management Contract o Elevator Retrofit Construction Contract  Bremerton City Council meeting – Wednesday, October 2nd o Council Approves PFD Agreement (this is delayed for approval October 16th)  Submit information package for Kitsap Transit Board – Tuesday, October 8th  Kitsap Transit Board Meeting – Tuesday, October 15th o Authorize City of Bremerton / Kitsap Transit Lease Agreement  Bremerton City Council meeting – Wednesday, October 16th o Authorize City of Bremerton / Kitsap Transit Lease Agreement o Authorize Interlocal Agreement: Bremerton / Public Facilities District o Authorize Conference Center Bid Award / Construction Contract o Authorize Conference Center Construction Contract o Authorize Conference Center Construction Management Contract o Authorize Elevator Retrofit Construction Contract  Conference Center Contractor notice to proceed – Thursday, October 17th  Elevator Retrofit Contractor notice to proceed – Thursday, October 17th  Kitsap Public Facilities District Board meeting: consider additional funding request  Construction complete – March 31, 2014 Project budget maximum, including both hard and soft costs: $1,100,000 Martin 10/9/13 Kitsap Conference Center Project Financing Update October 2, 2013 Original Project Budget, with revisions annotated: Conference Center 3rd Floor Expansion $900,000  Design and Bid Package - 79,000  Construction management - 30,000  Furniture and Equipment - 72,540 0 (convert to ongoing operational expense)  Sales Tax - 52,460 64,242  Window treatments - 30,000  Testing services - 5,000  Commissioning services - 8,000  Permits - 13,000 15,642 Amount available for construction $610,000 668,116 Low bid received = $746,900 (with all alternates) Contingency reserve at 3% = (.03)(746,900) = $22,407 Additional funding needed: $746,900 + $22,407 – $668,116 = $101,191 Additional funding proposals/commitments underway: 1) Kitsap Transit: $200,000 for elevators (and/or additional work related to landlord responsibility) -$103,445 for elevator retrofit/valve replacement -$ 15,000 to improve elevator interiors -$ 81,555 for partial reimbursement of work attributed to facility owner obligation 0 2) Kitsap Public Facilities District: a request for an administrative increase of 5% of the $400,000 PFD award will be considered by the PFD Board at its meeting on Monday, October 28, 2013. We will work with Kitsap Transit and the Kitsap Public Facilities District to achieve this additional funding. If accomplished, then additional outside funding would be $81,555 + $20,000 = $101,555, exceeding the minimum funding requirement by $364. This will provide funding for the base bid and all alternates, including 3% for contingencies. Projected Sales tax Sales tax Sales tax Sales tax Sales Tat Total sales Year Increase City Transit PFD County State tax increase $ per CHI 0.850%0.800%0.033%0.450%6.467%8.600% 2014 - - - - - - - 2015 516,360.00 4,389.06 4,130.88 170.40 2,323.62 33,393.00 44,406.96 2016 531,850.80 4,520.73 4,254.81 175.51 2,393.33 34,394.79 45,739.17 2017 547,806.32 4,656.35 4,382.45 180.78 2,465.13 35,426.63 47,111.34 2018 564,240.51 4,796.04 4,513.92 186.20 2,539.08 36,489.43 48,524.68 2019 581,167.73 4,939.93 4,649.34 191.79 2,615.25 37,584.12 49,980.42 2020 598,602.76 5,088.12 4,788.82 197.54 2,693.71 38,711.64 51,479.84 2021 616,560.84 5,240.77 4,932.49 203.47 2,774.52 39,872.99 53,024.23 2022 635,057.67 5,397.99 5,080.46 209.57 2,857.76 41,069.18 54,614.96 2023 654,109.40 5,559.93 5,232.88 215.86 2,943.49 42,301.25 56,253.41 2024 673,732.68 5,726.73 5,389.86 222.33 3,031.80 43,570.29 57,941.01 509,076.03 2025 693,944.66 5,898.53 5,551.56 229.00 3,122.75 44,877.40 59,679.24 2026 714,763.00 6,075.49 5,718.10 235.87 3,216.43 46,223.72 61,469.62 2027 736,205.89 6,257.75 5,889.65 242.95 3,312.93 47,610.44 63,313.71 2028 758,292.07 6,445.48 6,066.34 250.24 3,412.31 49,038.75 65,213.12 2029 781,040.83 6,638.85 6,248.33 257.74 3,514.68 50,509.91 67,169.51 2030 804,472.06 6,838.01 6,435.78 265.48 3,620.12 52,025.21 69,184.60 2031 828,606.22 7,043.15 6,628.85 273.44 3,728.73 53,585.96 71,260.13 2032 853,464.40 7,254.45 6,827.72 281.64 3,840.59 55,193.54 73,397.94 2033 879,068.34 7,472.08 7,032.55 290.09 3,955.81 56,849.35 75,599.88 12,969,346.19 110,239.44 103,754.77 4,279.88 58,362.06 838,727.62 1,115,363.77 Projected increase figures provided by Columbia Hospitality - increases 3% per year Figures do not include potential increases to local economy for outside sales Figures do not include potential increases to Hotel/Motel taxes Lease with Kitsap Transit for the Kitsap Conference Center Expansion Project: Impacts for the City of Bremerton Projected Sales tax Transit Transit Year Income City Lease CAMs taxes financing Total to Aggregate $ per CHI (general fund)subtotal 15.00$ 2.75$ 0.90%subtotal repayment City Cash Flow 0 0 - - - - - - - 0.00 1 2014 142,550.00 4,389.06 146,939.06 - 18,562.50 4,647.24 123,729.32 103,750.00 19,979.32 19,979.32 2 2015 146,646.50 4,520.73 151,167.23 - 18,562.50 4,786.66 127,818.07 103,000.00 24,818.07 44,797.39 3 2016 150,865.90 4,656.35 155,522.25 - 18,562.50 4,930.26 132,029.49 102,250.00 29,779.49 74,576.89 4 2017 155,211.87 4,796.04 160,007.92 - 18,562.50 5,078.16 136,367.25 101,500.00 34,867.25 109,444.14 5 2018 159,688.23 4,939.93 164,628.15 101,250.00 18,562.50 5,230.51 39,585.14 50,750.00 (11,164.86)98,279.28 6 2019 164,298.87 5,088.12 169,387.00 106,312.50 20,250.00 5,387.42 37,437.07 50,375.00 (12,937.93)85,341.36 7 2020 169,047.84 5,240.77 174,288.61 106,312.50 20,250.00 5,549.05 42,177.06 - 42,177.06 127,518.42 8 2021 173,939.28 5,397.99 179,337.27 106,312.50 20,250.00 5,715.52 47,059.25 - 47,059.25 174,577.66 9 2022 178,977.45 5,559.93 184,537.38 106,312.50 20,250.00 5,886.98 52,087.90 - 52,087.90 226,665.56 10 2023 184,166.78 5,726.73 189,893.51 106,312.50 20,250.00 6,063.59 57,267.41 - 57,267.41 283,932.98 1,625,392.72 50,315.65 1,675,708.37 632,812.50 194,062.50 53,275.40 795,557.98 511,625.00 283,932.98 usable sp rentable space 6,750 6,750.00 Projected increase figures provided by Columbia Hospitality - increases 3% per year Income before Interest, Taxes & Depreciation Lease to Transit - estimate only; amount has not yet been negotiated Lease assumes first five years no payment in lieu of improvements Assumes City interfund loan for $500,000 toward improvements 10/10/2013 12:11 PM AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Interlocal Agreement with the Kitsap Public Facilities District (KPFD) for Funding of the Kitsap Conference Center Expansion Project Study Session Date: Sept. 25 & Oct. 9, 2013 COUNCIL MEETING Date: October 16, 2013 Department: PW&U Presenter: Martin Phone: X 5758 SUMMARY: In June of this year, the Kitsap Public Facilities District Board awarded $400,000 to the City for the Conference Center Expansion Project. This interlocal agreement outlines the actions and responsibilities of both the City and the Public Facilities District related to this funding. ATTACHMENTS: Proposed Interlocal Agreement FISCAL IMPACTS (Include Budgeted Amount): A fund for this project has been established. Revenue includes $400,000 from the Public Facilities District; $500,000 from the City, and $200,000 from Kitsap Transit. STUDY SESSION AGENDA: ☐ No Discussion ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☒ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve the Interlocal Agreement with the Kitsap Public Facilities District and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/02/12 Signed (insert Date) DRAFT _ FOR REVIEW INTERLOCAL AGREEMENT REGARDING FUNDING FOR EXPANSION OF THE KITSAP REGIONAL CONFERENCE CENTER RELATED DOCUMENTS: - INTERLOCAL AGREEMENT REGARDING FUNDING, DEVELOPMENT AND OPERATION OF THE KITSAP REGIONAL CONFERENCE CENTER. (MARCH 25, 2002) - FIRST AMENDED & RESTATED INTERLOCAL AGREEMENT REGARDING FUNDING, DEVELOPMENT AND OPERATION OF THE KITSAP REGIONAL CONFERENCE CENTER. (JULY 28, 2003) This Interlocal Agreement (“Agreement”) is entered into as of October XX, 2013, between the City of Bremerton (“the City”), a first class charter city, duly organized and operating pursuant to the Constitution and laws of the State of Washington; and the Kitsap Public Facilities District (“the KPFD”), a municipal corporation organized and operating under the laws of the State of Washington, as established by Kitsap County, pursuant to Chapter 36.100 RCW. R E C I T A L S WHEREAS, the County Commissioners established the PFD pursuant to Chapter 36.100 RCW (“the Chapter”) to perform any function or combination of functions authorized by that chapter; and WHEREAS, the KPFD is authorized by RCW 36.100.030 to acquire, construct, own, remodel, maintain, equip, re-equip, repair, and operate “regional centers,” as defined in RCW 35.57.020; and WHEREAS, RCW 82.14.390 authorized the KPFD to impose a 0.033% sales and use tax (the “Sales Tax”), which operates to shift a share of the State’s sales and use tax revenues to public facilities districts at no additional cost to taxpayers; and WHEREAS, the KPFD has imposed the Sales Tax authorized by RCW 82.14.390; and WHEREAS, the Sales Tax may be applied to acquire, remodel, finance, and operate a regional special events center as defined in RCW 35.57.020; and WHEREAS, the KPFD and the City in 2002 decided to cooperate in establishing a “regional center” as defined in RCW 35.57.020; and WHEREAS, the KPFD and the City implemented their decision to establish this regional center by entering into that certain Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 (“the Original ILA”) which was amended and restated on July 28, 2003 (“the First Amended & Restated ILA”) ; and - 2 - WHEREAS, the KPFD’s funding of the improvements as set forth in the Original ILA and the First Amended & Restated ILA were part of a larger project as defined as the Project in the Original ILA and the First Amended & Restated ILA, and WHEREAS, the City completed the improvements to the Kitsap Regional Conference Center called for in the Original ILA and the First Amended & Restated ILA and has operated those improvements consistent with the objectives of the Original ILA and the First Amended & Restated ILA; and WHEREAS, the City proposes to expand the Kitsap Regional Conference Center from its current 10,000 SF size by utilizing an additional 7,000 SF, primarily on the third floor of the existing conference center building at an estimated cost of $1,100,000 (“the Additional Improvements”); and WHEREAS, the KPFD has collected more Sales Tax than had been originally projected when the Sales Tax was imposed as authorized by RCW 82.14.390; and WHEREAS, the KPFD is willing to provide additional funding for the construction of some portion of the Additional Improvements to Regional Conference Center; and WHEREAS, the Additional Improvements to the Kitsap Regional Conference Center are within the scope of the parties’ Original ILA and the First Amended & Restated ILA and consistent with the purposes of the Chapter; NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties agree as follows: A G R E E M E N T 1. Purpose of Agreement. The KPFD and the City are entering into this Agreement pursuant to RCW 36.100.030 and RCW 39.34.030. The purpose of this Agreement is to set forth the rights and responsibilities of each of the parties with regard to the funding, development, and operation of the Additional Improvements to the Kitsap Regional Conference Center. This Agreement supplements, but does not replace, that certain Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 (“the Original ILA”) which was amended and restated on July 28, 2003 (“the First Amended & Restated ILA”); provided, however, that in the event a specific provision of this Agreement conflicts with the Original ILA or the First Amended & Restated ILA, the terms of this Agreement shall control. 2. Additional Improvements. The KPFD and the City have agreed that the Additional Improvements are important to the development and the continued vitality and use of the Kitsap Regional Conference Center. KPFD and the County agree that the City shall be responsible for the development, design, calling for bids, and construction of Additional Improvements to the Kitsap Regional Conference Center. The KPFD shall provide partial funding of the Additional Improvements, as set forth - 3 - herein. 3. Funding. The KPFD and the City are prepared to fund Additional Improvements with a current estimated cost of approximately $1,100,000 (One-Million and One Hundred Thousand Dollars). Of this cost, the KPFD agrees to make one payment of $400,000 (Four Hundred Thousand Dollars) to the City. The payment shall be made within 30 (Thirty) days of the City entering into a construction contract and obtaining permits required to begin construction. In the event the cost of the Additional Improvements exceeds the City’s current estimate of the cost, the City may elect to either fund the additional expense the Additional Improvements, or elect not to fund and construct any or all of the Additional Improvements. In the event the City elects not to fund and construct any or all of the Additional Improvements and such reduction exceeds ten percent of the the City’s current estimate of the cost, the KPFD’s obligation to fund the Additional Improvements shall be reduced pro rata based upon the original estimated cost of constructing the Additional Improvements. The KPFD may then allocate such uncommitted funds to any of its other obligations, projects, or expenses that it, in its sole discretion, decides to fund. 4. Lead Agency Responsibilities. The City, on behalf of the KPFD and itself, will (i) be the agency with the primary responsibility for the development of the Additional Improvements to the Kitsap Regional Conference Center; (ii) fund (in conjunction with the KPFD), acquire, design, construct, own (subject to the rights of the landlord in the lease with the City for the improved premises), operate, and maintain the Additional Improvements to the Kitsap Regional Conference Center; and (iii) otherwise administer the development, operation, and maintenance of the Kitsap Regional Conference Center for the benefit of itself, the KPFD, and the residents of the County. 5. Reporting Requirements. The City shall keep the KPFD informed as to the status of the design, bidding, construction, funding, and completion of each major component of the Additional Improvements. As they are developed, the City shall provide preliminary schematic and design development documents, drawings, plans, and specifications to the KPFD for its review and comment. When the final design documents, drawings, plans, and specifications for each of the Additional Improvements are completed, such design documents shall be submitted to the KPFD for its review and comment. The KPFD shall also be notified when the City has awarded any bid for the construction of one or all of the Additional Improvements; and, further, shall provide to the KPFD a copy of each contract entered into by the City with regard to each major component of the Additional Improvements. Once construction of each major component of the Additional Improvements is under way, the City shall provide the KPFD with a monthly status report in a mutually acceptable form regarding each major component of the Additional Improvements. At a minimum, the monthly status report form shall include information regarding current cost projections and costs incurred per budget line item. This monthly status report shall be due by the 15th of each month and shall reflect costs incurred in the previous month. - 4 - 6. Administrator. This Agreement does not establish or create a separate legal entity or a joint board. The City shall be the administrator (within the meaning of RCW 39.34.030(4)) of this cooperative undertaking for the provision and operation of the Additional Improvements to the Kitsap Regional Conference Center including any of the following: acquiring, designing, constructing, owning (subject to the rights of the landlord in the lease with the City for the improved premises), remodeling, maintaining, equipping, re-equipping, repairing, financing, managing, scheduling, and operating the Additional Improvements as provided for in this Agreement. 7. Non-Discrimination. The City shall administer the provision and operation of the Kitsap Regional Conference Center, including the Additional Improvements, in such a manner as to provide residents of the County with access to the Kitsap Regional Conference Center without regard to their place of residence. The County shall not discriminate with respect to fees charged, conditions for use, attendance, or other access to the Kitsap Regional Conference Center on the basis of such residency. 8. Insurance. The City agrees to acquire and maintain insurance on the Kitsap Regional Conference Center, including the Additional Improvements, against risks, accidents, or casualties, at least to the extent that insurance is usually carried by public entities operating like properties and at least to the extent that such policies are available at reasonable cost, to protect the Kitsap Regional Conference Center against loss. In the event of any loss or damage, the City will promptly apply the proceeds of any insurance policy to the extent necessary to repair or replace (or cause the repair or replacement of) the damaged portion of the insured property to the extent economically viable. Insurance described in this Paragraph shall be in the form of policies or contracts for insurance with insurers of good standing and shall be payable to the City, or in the form of self- insurance by the City. The City shall establish such funds or reserves that it deems are necessary to provide for its share of any such self-insurance. 9. Environmental Law Compliance. The City shall be responsible for complying with all environmental laws applicable to construction of the Additional Improvements at the Kitsap Regional Conference Center. This includes, but is not limited to, City regulations, the State Environmental Policy Act ("SEPA"), CERCLA (42 U.S.C. § 9603), MTCA (RCW 70.105(D)), and the Clean Water Act (33 U.S.C. § 1321). To the extent required by WAC 197-11-944, the County shall be the nominal lead agency, whereby the City shall be responsible for complying with the duties of the lead agency under all applicable SEPA rules. 10. Maintenance, Operation, and Legal Compliance. The City shall manage, operate, and maintain the Kitsap Regional Conference Center including the Additional Improvements, at all times in a safe and clean manner. The City shall - 5 - provide (either directly or by contract) all management, supervision, personnel, materials, equipment, services, and supplies necessary to operate, maintain, and repair the Additional Improvements to the Kitsap Regional Conference Center (subject to the rights and obligations of the landlord in the lease with the City for the improved premises) and shall take all reasonable precautions to prevent damage, injury, or loss by reason of or related to the construction, operation, and maintenance of the Additional Improvements to the Kitsap Regional Conference Center to any person or property. The City shall comply with all applicable laws and ordinances in constructing, operating, and maintaining the Additional Improvements to the Kitsap Regional Conference Center. The City shall undertake all modifications to the Additional Improvements to the Kitsap Regional Conference Center required to comply with all applicable laws, regulations, judgments, and orders. 11. Appointment as Agent. Except with respect to the express undertakings of the KPFD in this Agreement, the KPFD hereby appoints the City as its agent with respect to the provision, construction, and operation of the Kitsap Regional Conference Center, including the Additional Improvements, but not otherwise, with full power and authority in connection therewith to make all management and operational decisions and take all actions necessary to carry out this joint undertaking without further need or requirement to consult with or obtain approval from the KPFD in connection with matters relating to the Kitsap Regional Conference Center. 12. City Indemnity Obligations. The City shall defend, indemnify, and hold the KPFD, and its respective elected officials, officers, employees, and agents ("KPFD Indemnitees") harmless from all claims, regardless of the nature of the claim, arising directly or indirectly from the planning, permitting, construction, maintenance, and operation of the Kitsap Regional Conference Center, including the Additional Improvements, except for claims arising from the sole negligence of any KPFD Indemnitee. In the case of concurrent negligence of the City and a KPFD Indemnitee, each party shall, unless otherwise agreed, defend itself and hold the other party harmless from their proportionate share of the resulting damages. This indemnity and hold harmless obligation shall extend to all claims of whatsoever kind and nature. It shall include attorneys' fees, expert witness fees, court costs, arbitration costs, administrative fines and penalties, and any other direct expense that is a direct consequence of a breach of any provision of this Agreement or any negligent act or failure to act. It shall include the duty to promptly accept tender of defense and provide defense to the KPFD Indemnitees. 13. KPFD Indemnity Obligations. The KPFD shall defend, indemnify, and hold the City, and its respective elected officials, officers, employees, and agents ("City Indemnitees") harmless from all claims, regardless of the nature of the claim, arising directly or indirectly from any breach by the KPFD of this Agreement or any negligent acts of the KPFD for which the KPFD is solely responsible. This indemnity and hold harmless obligation shall extend to all claims of whatsoever kind and nature. It shall include attorneys' fees, expert witness fees, court costs, arbitration costs, administrative fines and penalties, and any other direct expense that is a direct consequence of a breach of any provision - 6 - of this Agreement or any negligent act or failure to act. It shall include the duty to promptly accept tender of defense and provide defense to the City Indemnitees. 14. Interlocal Cooperation Act Provisions. The parties acknowledge that they have entered into this Agreement pursuant to the express authority granted to them by RCW 36.100.030(2) and RCW 36.01.010; pursuant to RCW 39.34.100, the powers and authority conferred by the Interlocal Cooperation Act (Chapter 39.34 RCW) are supplemental to powers or authority conferred by RCW 36.01.010 and RCW 36.100.030(2); and nothing contained in the Interlocal Cooperation Act limits the authority or power of either party to contract pursuant to RCW 36.01.010 and RCW 36.100.030(2). To avail themselves of the supplemental powers and authority granted by the Interlocal Cooperation Act, the parties agree that: a. No separate legal or administrative entity within the meaning of RCW 39.34.030(3)(b) or "joint board" within the meaning of RCW 39.34.030(4)(a) is created by this Agreement; b. The City's Director of Public Works & Utilities, is appointed as the "administrator" within the meaning of RCW 39.34.030(4)(a) and is responsible for administering the City's rights and duties set forth in this Agreement, and the KPFD's president is appointed as the "administrator" within the meaning of RCW 39.34.030(4)(a) and is responsible for administering the KPFD's rights and duties set forth in this Agreement; c. Paragraphs 2, 3, and 4 of this Agreement set forth the manner in which property is to be acquired, held, and disposed of under this Agreement, as required by RCW 39.34.030(3)(e) and RCW 39.34.030(4)(b); and d. The City will, pursuant to RCW 39.34.040, cause this Agreement to be filed with the Kitsap County Auditor immediately upon the full execution hereof by the parties. 15. Available Legal Remedies. The parties have the right to exercise any and all of the following remedies, singly or in combination, in the event that a party violates any material provision of this Agreement. a. Commence an action for equitable or other relief, including injunctive relief, or b. Seek a writ of mandamus to compel performance, or c. Commence an action seeking specific performance of any provision that reasonably lends itself to such remedy. - 7 - 16. Procedure in the Event of Default. Before exercising any of the available legal remedies the party alleging a breach ("Party") shall follow the procedure below. a. Notice of Violation. In the event that the Party believes that the other party has not complied with the terms of this Agreement and is a defaulting party ("Defaulting Party"), the Party shall notify the Defaulting Party in writing, by certified mail, of the nature of the alleged non-compliance. b. The Defaulting Party's Right to Cure or Respond. The Defaulting Party shall have ten (10) days from the receipt of notice described above, to (a) respond to the Party, or (b) to cure such default or, in the event that by nature of the default such default cannot be cured with the ten (10) day period, initiate steps to remedy such default as promptly as possible. The duty to cure includes the duty to cure all harms caused by the acts or omissions of the Defaulting Party. At the end of the ten (10) day period, the Defaulting Party shall notify the Party, in writing, of the steps it has taken to cure the default, if any; if the cure is not complete, the reason it is not complete and the projected date for completion; and if the default is disputed, the complete basis for that contention. c. If the Party determines that the Defaulting Party did not cure or initiate steps to cure to the Party's satisfaction, after the notice required herein was provided, then the Party may exercise its available remedies. 17. Supplemental Documents. The parties agree to complete and execute all supplemental documents necessary or appropriate to implement fully the terms of this Agreement. 18. Duration of Agreement. This Agreement shall continue in full force and effect until the soonest of the time that the parties have fully performed their respective obligations under this Agreement, the City’s lease for the premises that contain the Additional Improvements installed and funded as set forth herein has expired or terminated, that the KPFD is no longer legally entitled to collect Sales Tax, or that this Agreement has been terminated by agreement of the parties. 19. Governing Law; Venue. This Agreement is governed by and shall be construed in accordance with the substantive laws of the State of Washington and shall be liberally construed so as to carry out the purposes hereof. Except as otherwise required by applicable law, any action under this Agreement shall be brought in the Superior Court of the State of Washington in and for Kitsap County. - 8 - 20. Notices. All notices and other written communications required by this Agreement shall be in writing and, except as expressly provided elsewhere in this Agreement, shall be deemed to have been given at the time of delivery if personally delivered, or at the time of mailing if mailed by first class, postage pre-paid and addressed to the party at its address as stated below or at such address as any party may designate at any time in writing. To KPFD: [Insert] Kitsap Public Facilities District ___________________________ ___________________________ To City: City Clerk City of Bremerton 345 6th Street, Suite 600 Bremerton, WA 98337 21. Severability. It is the intent of the parties that if any provision of this Agreement or its application is held by a court of competent jurisdiction to be illegal, invalid or void, the validity of the remaining provisions of this Agreement or its application to other entities, or circumstances shall not be affected. The remaining provisions shall continue in full force and effect. The rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular invalid provision. However, if the invalid provision or its application is found by a court of competent jurisdiction to be substantive and to render performance of the remaining provisions unworkable and non-feasible, and is found to seriously affect the consideration and/or is inseparably connected to the remainder of this Agreement, then the entire Agreement shall be null and void. 22. Complete Agreement. This Agreement, together with that certain Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 (“the Original ILA”) which was amended and restated on July 28, 2003 (“the First Amended & Restated ILA”)represent the entire agreement between the parties concerning the Kitsap Regional Conference Center. This Agreement may not be amended except as provided herein. 23. Bond Covenants. Nothing in this Agreement is intended to affect or in any way modify the bond covenants previously made by the City in that Interlocal Agreement Regarding Funding, Development, and Operation of the Kitsap Regional Conference Center, dated March 25, 2002 (“the Original ILA”) which was amended and restated on July 28, 2003 (“the First Amended & Restated ILA”). - 9 - 24. Modification. No change, termination or attempted waiver of any of the provisions of this Agreement shall be binding on any of the parties unless executed in writing by authorized representatives of each of the parties. This Agreement shall not be modified, supplemented, or otherwise affected by the course of dealings between the parties. 25. Benefits. This Agreement is entered into for the benefit of the parties to this Agreement only and shall confer no benefits, direct or implied, on any third persons. 26. Assignment. The rights granted by this Agreement may not be assigned without the written consent of all the parties hereto. 27. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 28. Disclaimer With Respect to Loans and the KPFD. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW. Attest: _____________________________________ Shannon L. Corin, City Clerk CITY OF BREMERTON _____________________________________ Patty Lent, Mayor Approved as to form: ______________________________________ Roger Lubovich, City Attorney Signatures Continue on Next Page - 10 - Attest: _____________________________________ Anne Blair, Treasurer Approved as to form: __________________________________ Brian E. Lawler, General Counsel Socius Law Group PLLC KITSAP PUBLIC FACILITIES DISTRICT _____________________________________ Teresa Osinski, Chair R:\Legal\Legal\Files\Current Active Files\Conference Center\Harborside Conference Center Expansion\ILA re Additional Funding2 - Clean.doc AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Lease Agreement with Kitsap Transit for the Kitsap Conference Center Expansion Study Session Date: October 9, 2013 COUNCIL MEETING Date: October 16, 2013 Department: PW&U Presenter: Martin / Lubovich Phone: X 5758 SUMMARY: This lease agreement provides the foundation for the City’s investment into the expanded Kitsap Conference Center. ATTACHMENTS: Proposed Lease Agreement FISCAL IMPACTS (Include Budgeted Amount): This 20-year lease will be funded from the incremental increase in revenue that will be generated by the new Conference Center space. STUDY SESSION AGENDA: ☐ No Discussion ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☒ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve a Lease Agreement with Kitsap Transit for expansion of the Kitsap Conference Center and authorize the Mayor to execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/02/12 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -I- BREMERTON HARBORSIDE TRANSIT BUILDING LEASE AGREEMENT BETWEEN KITSAP TRANSIT AND THE CITY OF BREMERTON Landlord: Kitsap Transit Tenant: The City of Bremerton Date: This Lease was prepared by Ronald C. Templeton 3212 NW Byron Street #104 Silverdale, WA 98383 360-692-6415. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -1- TRANSIT HARBORSIDE BUILDING LEASE AGREEMENT THIS LEASE is made as of this _____ day of _______________, 2013, by and between KITSAP TRANSIT, a Washington Municipal Corporation (hereinafter referred to as “Landlord”), and the CITY OF BREMERTON, a Washington Municipal Corporation (hereinafter referred to as “Tenant”). LEASE SUMMARY Section 1.1 Premises Defined The Building (a) Name: Transit Building at Bremerton Harborside (b) Address: 100 Washington Avenue Bremerton, Washington (c) Total Rentable Area of Building: 37,625 square feet The Premises (a) Total Rentable Area of Tenant's Space: Approx. 6,750 sq. ft.1 (b) Floor Location: Third floor, depicted on Exhibit B Section 2.1 Use of Premises (a) Permitted uses: Conference Center Related Uses 1 Subject to potential adjustment. See Section 1.4. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -2- Section 3.1 and 3.3 Lease Term (a) Commencement Date: First day of first calendar month after 120 days has elapsed from the date of the issuance of Tenant's Building Permit (b) Term: Up to 20 years Section 4.3 Tenant Improvement Allowance $405,000.00 by way of Rent Credit for 48 Months Section 5.1 Minimum Rent Annual Rent Per Year Monthly Rent2 Rentable Sq. Ft. (RSF) Years 1-4 rent credit $8,437.50 $15.00 Years 5 $8,437.50 $15.00 Years 6-10 $8,859.38 $15.75 Years 11-15 $9,302.34 $16.54 Years 16-20 $9,767.46 $17.36 Section 5.3 Tenant’s Estimated Share of Operating Costs Operating Costs - Additional Rent3: Monthly Annual/RSF4 Years 1-5 $1,546.88 $2.75 Years 6-10 $1,687.50 $3.00 Years 11-15 TBD TBD Years 16-20 TBD TBD During the Initial Term, Tenant's estimated share of the Operating Costs will be adjusted for actual shared costs at the end of each calendar year in accordance with Section 5.3. 2 Subject to potential adjustment. See Section 1.4. 3 Subject to potential adjustment. See Section 1.4. 4 Subject to separately metered utilities. Parking and leasehold excise tax are excluded. See Exhibit D. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -3- Section 16.1 Addresses for Notices (a) Landlord: (b) Tenant: Kitsap Transit City of Bremerton Attn: Executive Director Attn: City Clerk 60 Washington Avenue #200 345 Sixth Street #600 Bremerton, WA 98337 Bremerton, WA 98337 Copy to: Copy to: Ronald C. Templeton Roger Lubovich General Counsel Bremerton City Attorney 3212 N.W. Byron Street, Suite 104 345 Sixth Street, Suite 600 Silverdale, WA 98383 Bremerton, WA 98337 Fax: (360) 692-1257 Email: rctempleton@telebyte.com 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -4- BREMERTON HARBORSIDE TRANSIT OFFICE BUILDING LEASE AGREEMENT ARTICLE 1 PREMISES Section 1.1 Premises Defined. Landlord is the owner of a building known as the Transit Building or Bremerton Harborside Building, located at 100 Washington Avenue, Bremerton, Washington in a complex which includes the Bremerton Harborside Conference Center (the “Conference Center”). Landlord hereby leases to Tenant and Tenant hereby leases from Landlord those certain premises in the Building located on the third floor Site Plan attached as Exhibit B (hereinafter referred to as the “Premises”). Those portions of the Premises for Tenant's exclusive use is sometimes referred to as "Tenants Space" or the "Interior of the Premises". Section 1.2 Common Areas. So long as Tenant occupies the Premises under the terms of this Lease, Tenant, its licensees, invitees, customers and employees shall have the non- exclusive right to use all common entrances to the Building, the first floor lobby, the elevators and stairways, the third floor hallways and restrooms, and the public areas which abut the Building (the “Common Areas”) in common with Landlord, other building tenants, and their respective licensees, invitees, customers and employees. The use of the Common Areas shall be subject to the terms and conditions of this Lease and any reasonable rules and regulations promulgated by Landlord regulating the use of such Common Areas. The Common Areas shall at all times remain under the sole control and administration of Landlord. Tenant shall not place any object or barrier within the Common Areas, or otherwise obstruct the use of the Common Area. Section 1.3 Landlord’s Reserved Rights. Landlord reserves the right from time to time (a) to install, use, maintain, repair, relocate and replace pipes, ducts, conduits, wires, and appurtenant meters and equipment for service to the Premises or to other parts of the Building which are above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas of the Building which are located within the Premises or located elsewhere in the Building; (b) to alter or expand the Building; and (c) to alter, relocate or substitute any of the Common Areas; provided, that such alteration, relocation or substitution of the Common Areas does not materially diminish access or visibility to the Premises. Section 1.4 Area Dimensions. The usable Floor Area of the Tenant's Space and Rentable Square Feet of the Tenant's Space and Building are based on the Building Architectural Plans provided Landlord during or following the completion of the construction of the Building. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -5- The calculations shall exclude the third floor “dead space” adjacent to the elevators of approximately 90 square feet and the first floor Elevator Lobby using the “BOMA Standard”. Unless on or before the Commencement Date, Tenant provides a Certification (as defined below) that the Total Rentable Areas of the Building and of Tenant's Space is other than the figures set forth in the Lease Summary, the figures in the Lease Summary shall be conclusive and binding on Landlord, Tenant and their respective successors. If, however, Tenant delivers a written certification from its Architect setting forth alternative figures (based on BOMA standards), including a statement that the Architect personally conducted or oversaw all area measurements and calculations, then the Architect's alternative figures shall be conclusive and binding on the Parties, but only if Tenant executed and delivers to Landlord, within fifteen (15) days of the Commencement Date, a duplicate original Acceptance Acknowledgment in the form attached as Exhibit C, in which case, the Minimum Rent and Additional Rent shall be adjusted accordingly. ARTICLE 2 BUSINESS PURPOSE AND USE Section 2.1 Permitted Uses. Tenant owns, and through a management contract with its subcontractor, operates the Conference Center. The purpose of this Lease is to enable Tenant to expand the capacity and capability of the existing Conference Center by leasing additional space. Accordingly, Tenant shall use the Premises for Conference Center uses including office space, break out space, food service and related uses. Tenant shall not use the Premises for any other purposes without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Section 2.2 Prohibited Uses. Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which will (a) in any way increase the existing rate of or affect any policy of fire or other insurance upon the Building or any of its contents or cause a cancellation of any insurance policy covering any part thereof or any of its contents; (b) obstruct or interfere in any way with the rights of other tenants or occupants of the Building, including their rights of quiet enjoyment; or (c) cause, maintain or permit any nuisance in, on or about the Premises. Tenant shall not place upon or install in windows or other openings any signs, symbols, drapes or other material without written approval of Landlord. Landlord may adopt from time to time rules and regulations which Tenant shall observe with respect to the use of the Premises so long as they are not in conflict with the permitted use of the Premises as set forth in the Lease Summary. Section 2.3 Compliance With Laws. Tenant shall at all times comply with all laws, ordinances and any regulation promulgated by any governmental authority having jurisdiction over the Building and/or the Premises. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -6- ARTICLE 3 TERM Section 3.1 Term. The term of this Lease shall be up to twenty years consisting of an initial term of ten (10) years (the “Initial Term”) and two extension options as provided in Section 3.3 below, if exercised, commencing on the Commencement Date, and ending on the last day of the month in which the 10th anniversary of the Commencement Date occurs (the “Expiration Date”), unless sooner terminated or extended as provided herein. For purposes of this Lease, the word “Term” shall mean the Initial Term and any Extension Term (as defined in Section 3.3 below). Section 3.2 Lease Year. For the purpose of this Lease, the term “Lease Year” shall mean and refer to that period of twelve (12) full consecutive calendar months beginning with the first full calendar month of the Term and each subsequent period of twelve (12) consecutive calendar months during the Term, provided that if the Term commences on other than the first day of a calendar month, then the initial fractional month of the Term plus the next succeeding twelve (12) full calendar months shall constitute the first Lease Year of the Term. Section 3.3 Extensions. Section 3.3.1 Extension Option. Provided Tenant is not then in default under this Lease beyond the applicable cure period, Tenant shall have the option to extend the term of this Lease for two (2) consecutive five (5) year period(s) (each an “Extension Term”), upon the same terms and conditions as contained in this Lease, except the Minimum Rent for each Extension Term shall be established in accordance with the provisions set forth in Section 5.55.1 below. To exercise an extension option, Tenant shall give Landlord written notice at least one hundred and twenty (120) days prior to the then current Expiration Date (“Tenant’s Extension Notice”). Tenant’s Extension Notice shall be effective to extend the Term of the Lease without further documentation except as expressly provided in Section 3.3.2 below. Section 3.3.2 Acknowledgment. At any time after Tenant has exercised its option to extend this Lease, Landlord and Tenant, upon request of either, will sign and acknowledge a written memorandum evidencing Tenant’s exercise of the option and stating the date to which such extension Term will extend and the rental rates that will be applicable during such Extension Term. Section 3.3.3 Restrictions. The Option to Extend is granted for Tenant’s personal benefit and may not be assigned or transferred by Tenant, either voluntarily or by operation of law, in any manner whatsoever, without the express written consent of Landlord. In the event that Landlord consents to an assignment of this Lease, the Option to Renew and Renewal Terms granted hereunder shall be void and of no further force and effect, whether or not Tenant shall have purported to exercise the Option to Renew prior to such assignment, unless Landlord has expressly consented thereto. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -7- ARTICLE 4 CONDITION OF THE PREMISES, POSSESSION AND TENANT IMPROVEMENTS Section 4.1 Condition Of The Premises. Tenant's Space has not been finished and all the improvements necessary or desirable for Tenant's occupancy and use are the responsibility of Tenant, subject to the provisions of the Section 4.2 and 4.3 below. Landlord represents that to the best of its information, knowledge and belief, all structural elements of the Building including the foundation, roof, roof membrane and roof system, exterior walls, plumbing, electrical and other mechanical systems (a) meet and comply with all federal, state and local laws, ordinances and regulations and all handicapped accessibility standards for the disabled, including, without limitation, those promulgated under the Americans With Disabilities Act (“ADA”), and (b) are seismically and otherwise sound and in good, workable and sanitary order, condition and repair as of the execution of this Agreement. Tenant represents that prior to executing this Lease, Tenant conducted a thorough investigation of the Premises. Subject only to the Landlord's maintenance responsibilities as set forth in Article 6, Tenant accepts the Premises in their current "as is" condition. Landlord has no responsibility to make any improvements to the Premises or any of the Common Areas. Section 4.2 Tenant’s Work. Section 4.2.1 Submission of Plans and Specifications. 4.2.1.1 Within thirty (30) days, or other mutually agreed upon time period, following execution of this Lease, Tenant shall furnish to Landlord and Landlord’s reviewing architect for review and approval, a total of three (3) sets of architectural prints ("TI Plan") prepared by a licensed architect and/or architects which detail Tenant’s planned construction of the Tenant Improvements for the Tenant's Space ("Tenant's Work") Once approved by Landlord, no material changes shall be made in Tenant’s TI Plans except with the written consent of Landlord, which consent shall not be unreasonably withheld. 4.2.1.2 Landlord will review plans and specifications submitted by Tenant in a timely manner, which approval shall not be unreasonably withheld or delayed, but Landlord shall not be liable for delays in Tenant’s construction, or costs incurred by Tenant as a result of such delays, related to the review process. Landlord shall be deemed to have approved Tenant’s TI Plans, unless within 14 calendar days of Landlord’s receipt of such plans, Landlord transmits its written and specific objections to Tenant. In the event Landlord transmits its written objections, Tenant agrees to make reasonable revisions or modifications in plans and specifications that may be reasonably requested by Landlord as a result of the review process. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -8- Section 4.2.2 Construction Of Tenant's Work. After Landlord's written approval of Tenant’s TI Plans, Tenant’s Work shall be done at Tenant’s sole cost and expense by a licensed and bonded general contractor. Before commencing the construction of Tenant’s Work, Tenant shall procure, at Tenant’s sole cost and expense all necessary building permits. All of Tenant’s Work shall be undertaken and completed in a timely manner, and in conformance with the approved plans, all applicable building, health and safety codes and applicable industry standards for good workmanship for first class office or conference space. Tenant shall pay for all of Tenant’s work in the ordinary course, not permit or suffer any liens to be filed against the Premises, improvements or Tenant’s interest in the Lease, and save, indemnify and hold Landlord harmless from (i) all costs, expenses and liabilities arising therefrom and (ii) injury to person, or damage to the property, the Common Areas or Building arising out of the performance of Tenant’s Work not due to the negligence or action or failure to act of the Landlord. Tenant shall, prior to physically occupying the Premises, procure a Certificate of Occupancy from the Tenant's Planning Department. Section 4.3 Tenant Improvement Allowance. Landlord shall provide Tenant with a Tenant improvement allowance in the amount of Four Hundred Five Thousand Dollars ($405,000.00) by means of a credit (the "Rent Credit") against the Minimum Rent to become due under the Lease. Section 4.4 Landlord's Improvement Expenditures And Contributions. Landlord agrees to expend up to $200,000.00 in Building Improvements as provided in Exhibit F attached hereto. ARTICLE 5 RENT Section 5.1 Minimum Rent. During the Initial Term of the Lease, Tenant shall pay to Landlord as minimum rental for the use and occupancy of the Premises the minimum rent as specified in the Lease Summary (as may be adjusted in accordance with the provisions of Section 1.4). This sum shall be referred to herein as the “Minimum Rent.” The Minimum Rent shall be paid in advance on the first day of each month during the Term of this Lease. Subject to the Rent Credit set forth in Section 4.3 above to which Tenant is entitled, the first installment of Minimum Rent shall be due on the Commencement Date specified in the Lease Summary. Section 5.2 Rent. The term “Rent” as used in this Lease shall mean all amounts to be paid hereunder by Tenant whether these sums are designated as Minimum Rent, Additional Rent 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -9- or otherwise as defined in this Lease. Rent for any partial year shall be prorated based upon the actual number of months left in such partial year. Section 5.3 Operating Costs as Additional Rent. Commencing on the Commencement Date and continuing throughout the Term, Tenant shall pay to Landlord as “Additional Rent” the Operating Costs as specified in the Lease Summary (as may be adjusted in accordance with the provisions of Section 1.4). The term “Operating Costs” represents Tenant's share of all costs, expenses and other charges incurred by Landlord in connection with the operation and maintenance of the Building as a first class, mixed use retail/office building complex. Operating Costs include the costs set forth in Exhibit D, excluding the "Exclusions" set forth therein, and excluding the cost of refuse collection which is governed by Section 5.6 below. During the Initial Term, Tenant's estimated share of the Operating Costs shall be paid at the amounts set forth in the Lease Summary. At the end of each calendar year, Landlord shall deliver to Tenant a written statement setting forth the Actual Operating Costs Allocated to the Premises for the preceding Lease Year. If these costs exceed the Tenants estimated share of Operating Costs paid, Tenant shall pay the excess to Landlord as Additional Rent. If the statement shows the Actual Operating Costs Allocated to the Premises to be less than the Tenants estimated share of Operating Costs paid, then Landlord shall pay the difference to Tenant. If Tenant occupies space for less than calendar year, any partial year shall be prorated based upon the actual number of months space was occupied by Tenant. Section 5.4 Operating Cost Extension Term Adjustments. During each Extension Term, Tenant's allocated share of the estimated Operating Costs shall be adjusted after determining the actual Operating Costs for the Building based on the average costs for the preceding 24 month period prior to the commencement of each option period, coupled with any known anticipated increased expenditures for the term of each such Extension Term. Section 5.5 Records. Landlord shall keep accurate records showing in detail all expenses incurred for Operating Costs. These records shall, upon reasonable request, be made available during business hours at the offices of Landlord for inspection and/or audit by Tenant or Tenant’s designated agent. Section 5.6 Refuse Collection. Refuse containers are located beneath the Conference Center and are shared by the Conference Center, the Building Tenants, Anthony's Restaurant and the Hampton Inn in the following shares (the "Refuse Shares"): Anthony's: 39% Conference Center: 14% Hotel: 8% 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -10- Landlord (for currently occupied Portions of Transit Building 39% Tenant agrees that if there is a material increase in the refuse generated from the Premises and the Conference Center, there shall be an equitable upward adjustment of Tenant's allocated share and Tenant and Landlord will use their best efforts to induce the above Parties to adjust the allocated Refuse Shares and memorialize the shared use of the Refuse facilities by the above parties. Section 5.7 Place Of Payment. All Rent shall be paid to the Landlord on the first day of each month at the address specified in the Lease Summary. All payments of Rent to be made hereunder are to be made without deduction, setoff, or prior notice or demand by Landlord. ARTICLE 6 MAINTENANCE, REPAIRS AND ALTERATIONS Section 6.1 Services to be Furnished by Landlord. Provided Tenant is not in default under any of the provisions of this Lease beyond any applicable cure period, if any, Landlord shall provide the following services during the Term of this Lease, the cost of all of which (excluding capital costs of original installation) shall be Operating Costs of the Building subject to the provisions of Sections 5.3 and 5.4: 6.1.1 Unless metered separately to Tenant, public utilities to the Building shall be furnished in accordance with Exhibit D and Tenant shall be responsible for the distribution of such utilities from Landlord’s point of connection at the demising wall throughout Tenant's Space; 6.1.2 Routine maintenance, painting and electric lighting service for all Common Areas and special service areas of the Building in the manner and to the extent deemed by Landlord to be standard and consistent with the operation and maintenance of the Building as a first-class mixed-use office/retail building in the City of Bremerton; and 6.1.3 Security for the Common Areas of the Building; provided, however, Landlord shall not be liable to Tenant or any employee, invitee, licensee or sublessee of Tenant for losses due to theft or burglary, or for personal injury or damages done by unauthorized persons in the Building. Failure by Landlord to any extent to furnish any of the above services, or any cessation thereof, resulting from causes beyond the reasonable control of Landlord, shall not render Landlord liable in any respect for damages to either person or property, nor shall such event be construed as an eviction of Tenant, nor result in an abatement of Rent, nor relieve Tenant from any of Tenant’s obligations hereunder (including, but not limited to, the payment of 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -11- Rent). Should any of the equipment or machinery utilized in supplying the services listed herein for any cause cease to function properly, Landlord shall use reasonable diligence to repair the equipment or machinery promptly, but Tenant shall have no right to terminate this Lease, and shall have no claim for a reduction, abatement or rebate of Rent or damages on account of any interruption in service occasioned thereby or resulting therefrom. Section 6.2 Tenant’s Maintenance And Repairs. Tenant shall be obligated to maintain and to make all repairs to Tenant's Space and to all fixtures installed therein promptly and in a good clean condition and workmanship like manner. Tenant shall provide regular janitorial service to Tenant's Space, including at least annual washing of interior windows in order to maintain a clean and professional appearance. If Tenant fails to provide these janitorial services, Landlord may at its option provide such services at the expense of Tenant and as Additional Rent. Landlord shall be responsible for the washing of exterior windows of the Building, which window washing shall be done according to the schedule determined by Landlord and as part of the Operating Costs of the Building. Section 6.3 Tenant’s Alterations. Tenant shall make no alterations, modifications or changes to Tenant's Space without Landlord’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Any repairs or new construction by Tenant shall be done in conformity with plans and specifications approved by Landlord and shall be performed by a licensed contractor approved by Landlord. All work performed shall be done in a workmanlike manner and with materials (where not specifically described in the specifications) of the quality and appearance as exist throughout the Building, and shall become the property of Landlord. Landlord may require Tenant to remove and restore any improvements or alterations on the termination of this Lease in accordance with Section 11.2 below. Section 6.4 Liens. Tenant shall keep the Premises and the Property on which the Premises are located, free from any liens arising out of any work performed, material furnished, or obligations incurred by Tenant. If Tenant disputes the correctness or validity of any claim of lien, Tenant shall, within ten (10) days after written request by Landlord, post or provide security in a form and amount acceptable to Landlord to insure title to the Property free from the lien claimed. ARTICLE 7 INSURANCE AND INDEMNIFICATION Section 7.1 Use; Rate. Tenant shall not do anything in or about the Premises which will in any way tend to increase insurance rates paid by Landlord on policies of liability or casualty insurance maintained with respect to the Building and/or Property. In no event shall Tenant carry on any activities which would invalidate any insurance coverage maintained by Landlord. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -12- Section 7.2 Liability Insurance. Tenant shall, during the Lease Term, at its sole expense, maintain in full force a policy or policies of comprehensive liability insurance issued by one or more insurance carriers, insuring against liability for injury to or death of persons and loss of or damage to property occurring in or on the Premises. Said liability insurance shall be in an amount not less than Two Million Dollars ($2,000,000.00) combined single limit for bodily and personal injury and property damage. Section 7.3 Worker’s Compensation Insurance. Tenant shall at all times maintain Worker’s Compensation Insurance in compliance with Washington law. Section 7.4 Casualty Insurance. Tenant shall pay for and shall maintain in full force and effect during the Term of this Lease a standard form policy or policies of property and all- risk coverage with an extended coverage endorsement covering all interior glass, but specifically excludes exterior building glass, whether plate or otherwise (unless any damage to such glass is caused by the Tenant) and all personal property owned by Tenant located in the Premises. Section 7.5 Compliance With Regulations. Tenant shall, at its own expense, comply with all requirements, including installation of fire extinguishers, or automatic dry chemical extinguishing systems, required by insurance underwriters or any governmental authority having jurisdiction thereover, necessary for the maintenance of reasonable fire and extended insurance for the Premises and/or Building. Section 7.6 Waiver of Subrogation. Any property and all-risk coverage insurance carried by Landlord or Tenant insuring, in whole or in part, the Building and/or the Premises, including improvements, alterations and changes in and to the Premises made by either of them, and Tenant’s trade fixtures therein shall be written in such a manner as to permit the waiver of rights of subrogation prior to loss by either party against the other in connection with loss or damage covered by the policies involved. So long as the policy or policies can be so written and maintained in effect, neither Landlord nor Tenant shall be liable to the other for any such loss or damage. Either party shall, upon request by the other party, furnish such other party evidence of its compliance with this Section 7.6. Section 7.7 General Requirements. 7.7.1 All policies of insurance required to be carried hereunder by Tenant shall be written by companies licensed to do business in Washington and which are rated A:XIII or better in the “Best’s Key Rating Guide”. Tenant shall, when requested by Landlord, furnish Landlord with a certificate evidencing insurance required to be maintained by Tenant pursuant to this Article 8 and shall satisfy Landlord that each such policy is in full force and effect. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -13- 7.7.2 The policy of public liability insurance required to be carried under Section 7.2 above shall be primary and non-contributing with the insurance carried by Landlord. 7.7.3 Each policy required under Section 7.2 shall expressly include, severally and not collectively, as named or additionally named insured thereunder, the Landlord and any person or firm designated by the Landlord and having an insurable interest thereunder, hereinafter called "Additional Insured", as their respective interests may appear. 7.7.4 Tenant shall promptly provide Landlord with written notice of any changes in any of the insurance policies maintained by Tenant. The policies of insurance or duly executed Accord Forms 25 and 27 as applicable, Evidence of Insurance Forms evidencing such policies, shall be deposited with Landlord within ten (10) days of the execution of this Lease. 7.7.5 If the Tenant fails to procure and maintain insurance as required by this Article 7, the Landlord may obtain such insurance and keep it in effect, and the Tenant shall pay to Landlord the premium cost thereof, upon demand and as Additional Rent, with interest as provided in Section 19.8 below from the date of payment by the Landlord to the date of repayment by the Tenant. 7.7.6 The limits of any insurance maintained by Tenant pursuant to this Article 7 shall in no way limit the liability of Tenant under this Lease. Section 7.8 Self Insurance And Blanket Insurance. The Tenant may fulfill its insurance obligations hereunder by maintaining either "Self Insurance Coverage" or a so-called “blanket” policy or policies of insurance (collectively referred to as "Alternative Insurance"). All policies of Alternative Insurance must provide by specific endorsement, coverage not less than that which is required hereunder for the particular property or interest referred to herein; provided, however, that the coverage required by this Article 7 will not be reduced or diminished by reason of use of such Alternative Policies of Insurance. Section 7.9 Indemnification . Except to the extent covered by insurance maintained by Landlord or required herein to be maintained by Landlord, Tenant shall indemnify and hold harmless Landlord against and from any and all damages, liabilities, claims and expenses (including without limitation reasonable attorneys’ fees and court costs) arising from Tenant’s use of the Premises or the conduct of its business or from any activity, work, or thing done, permitted or suffered by the Tenant in or about the Premises, and shall further indemnify and hold harmless Landlord against and from any and all damages, liabilities, claims and expenses (including without limitation reasonable attorneys’ fees and court costs) arising from any breach or default in the performance of any obligation on Tenant’s part to be performed under the terms 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -14- of this Lease. If any such action or proceeding is brought against Landlord, Tenant, upon notice from Landlord, shall defend Landlord against that claim at Tenant’s expense by counsel reasonably satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in or about the Premises from any cause whatsoever except Landlord’s negligence or intentionally wrongful conduct and Tenant hereby waives all claims in respect thereof against Landlord. Tenant agrees that it will not assert its industrial insurance immunity if such assertion would be inconsistent with Landlord’s right to indemnification from Tenant pursuant to this Section 7.9. The parties agree that this provision was mutually negotiated. Landlord shall indemnify and hold harmless Tenant against and from any and all damages, liabilities, claims and expenses (including without limitation reasonable attorneys’ fees and court costs) arising from Landlord’s negligence or intentionally wrongful conduct Landlord agrees that it will not assert its industrial insurance immunity if such assertion would be inconsistent with Tenant’s right to indemnification from Landlord pursuant to this Section 7.9. The parties agree that this provision was mutually negotiated. ARTICLE 8 DESTRUCTION AND CONDEMNATION Section 8.1 Total Or Partial Destruction. 8.1.1 In the event the Building and/or the Premises is damaged by fire or other perils covered by Landlord’s insurance, Landlord shall: 8.1.1.1 In the event of total destruction, at Landlord’s option, as soon as reasonably possible thereafter, commence repair, reconstruction and restoration of the Building and/or the Premises and prosecute the same diligently to completion, in which event this Lease shall remain in full force and effect; or within sixty (60) days after such damage, elect not to so repair, reconstruct or restore the building and/or the Premises, in which event this Lease shall terminate. In either event, Landlord shall give Tenant written notice of its intention within said sixty (60) day period and specify the estimated period of reconstruction. In the event Landlord elects not to restore the Building, and/or the Premises, this Lease shall be deemed to have terminated as of the date of such total destruction. If the time for reconstruction shall exceed 180 days from the date of Landlord’s notice, then Tenant shall have the right to terminate the Lease. 8.1.1.2 In the event of partial destruction of the Building and/or the Premises, to an extent not exceeding twenty-five percent (25%) of the full insurable value thereof, and if the damage thereto is such that the Building and/or the Premises may be repaired, reconstructed or restored within a period of ninety (90) days from the date of the happening of such casualty, and if Landlord will receive insurance proceeds sufficient to cover the cost of such 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -15- repairs, then Landlord shall commence and proceed diligently with the work of repair, reconstruction and restoration and this Lease shall continue in full force and effect. If such work of repair, reconstruction and restoration shall require a period longer than ninety (90) days or exceeds twenty-five percent (25%) of the full insurable value thereof, or if said insurance proceeds will not be sufficient to cover the cost of such repairs, then Landlord either may elect to so repair, reconstruct or restore and the Lease shall continue in full force and effect or Landlord may elect not to repair, reconstruct or restore and the Lease shall then terminate. Under any of the conditions of this Section 8.1.1.2, Landlord shall give written notice to Tenant of its intention within sixty (60) days after such partial destruction. If the time for reconstruction shall exceed 180 days from the date of Landlord’s notice, then Tenant shall have the right to terminate the Lease. In the event Landlord elects not to restore the Building and/or the Premises, this Lease shall be deemed to have terminated as of the date of such partial destruction. 8.1.2 Upon any termination of this Lease under any of the provisions of this Section 8.1, the parties shall be released without further obligation to the other from the date possession of the Premises is surrendered to Landlord except for items which have theretofore accrued and are then unpaid. 8.1.3 In the event of repair, reconstruction and restoration by Landlord as herein provided, the rental payable under this Lease shall be abated proportionately with the degree to which Tenant’s use of the Premises is impaired during the period of such repair, reconstruction or restoration. Tenant shall not be entitled to any compensation or damages for loss in the use of the whole or any part of the Premises and/or any inconvenience or annoyance occasioned by such damage, repair, reconstruction or restoration. Tenant shall not be released from any of its obligations under this Lease except to the extent and upon the conditions expressly stated in this Section 8.1. Notwithstanding anything to the contrary contained in this Section 8.1, if Landlord is delayed or prevented from repairing or restoring the damaged Premises within one (1) year after the occurrence of such damage or destruction by reason of acts of God, war, governmental restrictions, inability to procure the necessary labor or materials, or other cause beyond the control of Landlord, Landlord or Tenant, at its option, may terminate this Lease, whereupon Landlord shall be relieved of its obligation to make such repairs or restoration and Tenant shall be released from its obligations under this Lease as of the end of said one (1) year period. 8.1.4 If damage is due to any cause other than fire or other peril covered by extended coverage insurance, Landlord may elect to terminate this Lease. 8.1.5 If Landlord is obligated to or elects to repair or restore as herein provided, Landlord shall be obligated to make repair or restoration only of those portions of the Building 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -16- and the Premises which were originally provided at Landlord’s expense, and the repair and restoration of items not provided at Landlord’s expense shall be the obligation of Tenant. 8.1.6 Notwithstanding anything to the contrary contained in this Section 8.1, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises when the damage resulting from any casualty covered under this Section 8.1 occurs during the last twelve (12) months of the Term of this Lease or any extension hereof. Further, in the event of any damage or destruction occurs during the last 12 months of the Lease that renders the Premises substantially untenable, Tenant shall have the right to terminate this Lease. 8.1.7 Landlord and Tenant hereby waive the provisions of any statutes or court decisions which relate to the abatement or termination of leases when leased property is damaged or destroyed and agree that such event shall be exclusively governed by the terms of this Lease. Section 8.2 Condemnation. If the whole of the Property or the Premises, or such portion thereof as shall be required for its reasonable use, shall be taken by virtue of any condemnation or eminent domain proceeding, this Lease shall automatically terminate as of the date of the condemnation, or as of the date possession is taken by the condemning authority, whichever is later. Current Rent shall be apportioned as of the date of the termination. In case of a taking of a part of the Premises or a part of the Property not required for the reasonable use of the Premises, then this Lease shall continue in full force and effect and the Rental shall be equitably reduced based upon the proportion by which the Store Area of the Premises is reduced. This Rent reduction shall be effective on the date of the partial taking. No award, settlement in lieu of an award, or any partial or entire taking shall be apportioned, and Tenant hereby assigns to Landlord any award or settlement in lieu of an award which may be made in the taking or condemnation proceeding, together with any and all rights of Tenant now or hereafter arising in or to the same or any part thereof, except for the value of the tenant improvements made by Tenant at Tenant's cost (without a rent credit from Landlord); provided that nothing herein shall prevent Tenant from making a separate claim against the condemning authority for the taking of Tenant’s personal property and/or moving costs so long as such claim in no way affects the award to be received by Landlord. Section 8.3 Sale Under Threat Of Condemnation. A sale by Landlord to any authority having the power of eminent domain, either under threat of condemnation or while condemnation proceedings are pending, shall be deemed to be a taking under the power of eminent domain for all purposes under this Article 8. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -17- ARTICLE 9 TENANT'S OPERATIONS Section 9.1 General. In using and occupying the Premises, Tenant will at its expense: (a) keep the inside and outside of all glass in the doors of the Premises clean; (b) replace promptly any cracked or broken glass of the Premises owned by the Tenant, which specifically excludes exterior building glass, unless such excluded glass is damaged by Tenant or Tenant’s operations, with glass of like kind and quality and make available all insurance proceeds from Tenant’s plate glass insurance policy for these purposes; (c) maintain the Premises in a clean, orderly and sanitary condition and free of insects, rodents, vermin and other pests; (d) keep any garbage, trash, rubbish or refuse in rat-proof containers within the interior of the Premises until removed and comply with Landlord’s rules and regulations relating to the disposition of the garbage; (e) have all garbage, trash, rubbish and refuse removed not less frequently than twice per week; (f) keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the Premises; and (h) conduct its business in all respects in a dignified manner in accordance with high standards of operation consistent with the quality of operation of a first class mixed use building for Conference Center, office and retail use. Section 9.2 Restrictions. In regard to use and occupancy of the Premises and Common Areas, Tenant will not: (a) place or maintain any merchandise, trash, refuse or other articles in any vestibule or entry of the Premises, on the sidewalks or corridors adjacent thereto or elsewhere on the exterior of the Premises so as to obstruct any sidewalk, arcade or any other Common Area; (b) use or permit the use of any objectionable advertising medium such as, without limitation, loud speakers, phonographs, public address systems, sound amplifiers, reception of radio or television broadcasts within the Building, which is in any manner audible or visible outside of the Tenant's Space; (c) permit accumulations of garbage, trash, rubbish or other refuse within or without the Premises; (d) cause or permit objectionable odors to emanate or be dispelled from the Premises; (e) solicit or conduct business in the Common Areas; (f) distribute handbills or other advertising matter in the Common Areas; (g) permit the parking of delivery vehicles so as to interfere with the use of any drive aisle, sidewalk, parking area, arcade or other Common Area; (h) receive or ship articles of any kind except through service facilities provided by the Landlord; (i) conduct or permit to be conducted any auction, fire, going out of business, bankruptcy, or other similar type sale in or connected with the Premises, except in the normal course of conference center business such as fundraising events; or (j) place a load upon any floor which exceeds the load which the floor was designed to carry or is allowed to carry by law. Tenant shall observe Landlord’s rules and regulations relating to delivery hours to the Premises. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -18- ARTICLE 10 ASSIGNMENT AND SUCCESSION Section 10.1 Consent Required. Tenant shall not either voluntarily, or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, except the renting of space in the normal course of conference center business, without first obtaining the written consent of Landlord. When Tenant requests Landlord’s consent to an assignment or subletting, it shall notify Landlord in writing of the name and address of the proposed assignee or sublessee and the nature and character of the business of the proposed assignee or sublessee and shall provide financial statements for the proposed assignee or sublessee. Landlord’s consent to any proposed assignment or subletting shall not be unreasonably withheld; provided that it shall be reasonable for Landlord in exercising this right to evaluate: (a) the financial condition of the proposed assignee or sublessee; (b) the management capabilities of the proposed assignee or sublessee; (c) the proposed use of the assignee or sublessee; and (d) the effect of the proposed business of the proposed assignee or sublessee upon other tenants in the Building. Landlord may condition any consent upon the execution of one or more personal guarantees and/or upon an increase in the Minimum Rent payable hereunder in an amount equal to any subrental or other consideration received by Tenant as a result of the subletting or assignment which is in excess of the Minimum Rent provided for in Section 4.1 above. Landlord may require payment by Tenant to cover its actual charges and costs incurred for each assignment it is requested to approve. Section 10.2 General Conditions. In the event of any assignment or subletting of this Lease, Tenant shall remain primarily liable on its covenants hereunder unless released in writing by Landlord. In the event of any assignment or sublease, the assignee or sublessee shall agree, in writing, to perform and be bound by all of the covenants of this Lease required to be performed by Tenant. Section 10.3 Succession. Subject to any limitations on assignments set forth herein, all the terms and provisions of this Lease shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto. Section 10.4 Right Of Recapture. Notwithstanding any provisions of this Article 11 to the contrary, after the Landlord receives a request from Tenant to consent to either an assignment or sublease of all or any portion of the Premises, Landlord shall have the option, to be exercised by written notice within thirty (30) days after the receipt of such request, to terminate this Lease and the Term hereof on not less than thirty (30) days and not more than ninety (90) days notice to the Tenant. If the Landlord elects to terminate this Lease as aforesaid, the Tenant shall have the right, to be exercised by written notice to the Landlord within ten (10) days after receipt of such notice of 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -19- termination, to withdraw the request for consent to the proposed assignment or sublease, in which case the Tenant shall not proceed with such assignment or sublease, the notice of termination shall be null and void and this Lease shall continue in full force and effect in accordance with its terms. ARTICLE 11 SURRENDER OF POSSESSION Section 11.1 Surrender. At the expiration or earlier termination of the Lease Term created hereunder, whether by lapse of time or otherwise, Tenant shall surrender the Premises to Landlord. Section 11.2 Condition At Time Of Surrender. Furnishings, trade fixtures and equipment installed by Tenant shall be the property of Tenant and upon termination of this Lease, Tenant shall remove that property; provided, however, furnishings, fixtures and equipment installed so as to become fixtures upon the Premises or the Building shall be the property of Landlord and shall not be removed from the Premises. Tenant shall repair or reimburse Landlord for the cost of repairing any damage to the Premises resulting from the installation or removal of such property, and Tenant shall deliver the Premises to Landlord in clean and good condition, except for reasonable wear and tear. Section 11.3 Failure To Surrender. If Tenant fails to surrender the Premises upon the termination of this Lease, Tenant shall indemnify and hold harmless Landlord from loss or liability resulting from such failure to surrender including, without limiting the generality of the foregoing, any claims made by any succeeding Tenant. ARTICLE 12 HOLDING OVER Section 12.1 Holding Over. This Lease shall terminate without further notice at the expiration of the Lease Term. Any holding over by Tenant without the express written consent of Landlord shall not constitute the renewal or extension of this Lease or give Tenant any rights in or to the Premises. In the event of such a holding over by Tenant without the express written consent of Landlord, the monthly Rent payments to be paid by Tenant shall be subject to increase at the sole discretion of Landlord in an amount equal to one hundred ten percent (110%) of the then applicable Rental rate; provided, however, no payment of such increased Rental by Tenant shall be deemed to extend or renew the Term of this Lease, and such Rental payments shall be fixed by Landlord only to establish the amount of liability for payment of Rent on the part of Tenant during such period of holding over. In the event Landlord shall give its express written consent to Tenant to occupy the Premises beyond the expiration of the Term, that occupancy shall be construed to be a month-to-month tenancy upon all the same terms and 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -20- conditions as set forth herein unless modified by Landlord in such written consent; provided that Rent charged during any period of holding over shall be as stated above. ARTICLE 13 ENTRY BY LANDLORD Section 13.1 Entry By Landlord. Landlord reserves, and shall at all times have, the right to enter the Premises, after 24 hours’ notice except in the case of an emergency, during business hours to inspect them, to submit the Premises to prospective purchasers and in the last year of the Lease, to prospective tenants, to post notices of non-responsibility, to repair the Premises and any portion of the Building that Landlord may deem necessary or desirable, without abatement of Rent, and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, always providing that the entrance to the Premises shall not be unreasonably blocked thereby, and further providing that the business of the Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim for damages or for any injury or inconvenience to or interference with Tenant’s business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by exercise of Landlord of its rights under this Article. For each of these purposes, Landlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Premises, excluding Tenant’s vaults, safes and files, and Landlord shall have the right to use any and all means which Landlord may deem proper to open the doors in an emergency, in order to obtain entry to the Premises without liability to Tenant except for any failure to exercise due care for Tenant’s property and any entry to the Premises obtained by Landlord by any of these means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof. Tenant shall not change the locks or keys to the Premises without Landlord’s prior written consent and shall furnish Landlord with details of any security system installed in or on the Premises. ARTICLE 14 DEFAULT AND REMEDIES Section 14.1 Events Of Tenant’s Default. The occurrence of any one or more of the following events shall constitute a material default in breach of this Lease by Tenant: 14.1.1 Vacation or abandonment of the Premises; 14.1.2 Failure by Tenant to make any payment required as and when due; provided, that Landlord shall first be required to give Tenant written notice of default and Tenant shall have failed to cure such default within ten (10) days of Tenant’s receipt or deemed receipt of Landlord’s notice; and 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -21- 14.1.3 Failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease, other than making any payment when due, where that failure shall continue for a period of thirty (30) days after Landlord gives written notice to Tenant of that failure, or if such failure is not reasonably capable of being cured within the thirty (30) day period, Tenant shall not be in default unless Tenant fails to promptly commence and diligently pursue the cure to completion. Section 14.2 Remedies. In the event of any breach or default by Tenant under the terms or provisions of this Lease, Landlord, in addition to any other rights or remedies that it may have, shall have the immediate right of reentry. Should Landlord elect to reenter or take possession of the Premises, it may either terminate this Lease, or from time to time, without terminating this Lease, re-let the Premises or any part thereof for the account and in the name of the Tenant or otherwise, for any term or terms and conditions as Landlord in its sole discretion may deem advisable, with the right to complete construction of or make alterations and repairs to the Premises and/or improvements installed by Tenant. Tenant shall pay to Landlord in the event of re-letting, as soon as ascertained, the costs and expenses incurred by Landlord in the re-letting, completion of construction, or in making any alterations and repairs. Rentals received by Landlord from any re-letting shall be applied: first, to the payment of any indebtedness, other than Rent, due hereunder from Tenant to Landlord; second, to the payment of Rent due and unpaid hereunder and to any other payments required to be made by the Tenant hereunder; and the residue, if any, shall be held by Landlord in payment of future Rent or damages in the event of termination as the same may become due and payable hereunder; and the balance, if any, at the end of the Term of this Lease shall be paid to Tenant. Should Rental received from time to time from the re-letting during any month be a lesser Rent than herein agreed to by Tenant, the Tenant shall pay the deficiency to Landlord. The Tenant shall pay the deficiency each month as the amount thereof is ascertained by the Landlord. Notwithstanding the foregoing, Landlord shall also have the right upon Tenant’s default to terminate this Lease, accelerate all Minimum Rent payments due under this Lease for the remaining Term hereof, or if Tenant has been granted an option to extend and that option has been exercised, for the remainder of the Extension Term, and shall be entitled to recover from Tenant the total amount of unpaid Minimum Rent together with all past due Rent and any other payment due hereunder, less the amount which is established to be the reasonable rental value of the Premises for the remaining Term, after taking into consideration normal duration of vacancy periods, tenant improvement costs and Landlord’s reasonably anticipated costs of re-letting the Premises. Section 14.3 Re-letting. No re-letting of the Premises by Landlord permitted under this Lease shall be construed as an election on its part to terminate this Lease unless a notice of that intention is given to Tenant or unless the termination of this Lease be decreed by a court of competent jurisdiction. Notwithstanding any re-letting without termination, Landlord may at any time thereafter elect to terminate this Lease for a previous breach; provided it has not been cured. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -22- Should Landlord at any time terminate this Lease for any breach, in addition to any other remedy it may have, it may recover from Tenant all damages it may incur by reason of that breach. Section 14.4 Default Of Landlord. Landlord shall not be in default unless Landlord fails to perform its obligations under this Lease within thirty (30) days after notice by Tenant, or if such failure is not reasonably capable of being cured within the thirty (30) day period, Landlord shall not be in default unless Landlord has failed to commence the cure and diligently pursue the cure to completion. Section 14.5 Notice Of Default. Tenant shall notify Landlord of any default by Landlord not by its nature necessarily known to Landlord. Section 14.6 Non-Waiver. Failure by Landlord to take action or declare a default as a result of any breach of any term, covenant or condition in this Lease shall not be deemed to be a waiver of that term, covenant, or condition, or of any subsequent breach of any other term, covenant or condition contained in this Lease. The subsequent acceptance of Rent by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord’s knowledge of that preceding breach at the time of acceptance of that Rent. ARTICLE 15 LIMITATION OF LIABILITY Section 15.1 Limitation Of Landlord’s Liability. Tenant understands, covenants and agrees that Landlord’s liability under this Lease is expressly limited to Landlord’s interest in the Property and the Building, and Tenant shall have no recourse hereunder against any officer, Director, Board Member or employee of Landlord (collectively “Landlord’s Agents”) nor any other property of Landlord or any property of Landlord or Landlord’s Agents. ARTICLE 16 NOTICES Section 16.1 Notices. Any notice required or desired to be given under this Lease shall be in writing with copies directed as indicated in this Lease and shall be personally served, sent via a commercially recognized overnight courier such as Federal Express, or given by mail. Any mail given by facsimile or overnight courier shall be deemed given when received or delivery refused. Any notice given by mail shall be deemed to have been given when seventy-two (72) hours have elapsed from the time when that notice was deposited in the United States mail, certified and postage prepaid, addressed to the party to be served at the last address given by the party to the other party under the provisions of this section. At the date of the execution of this 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -23- Lease the addresses of the Landlord and Tenant for notices are as specified in the Lease Summary. ARTICLE 17 HAZARDOUS SUBSTANCES Section 17.1 Presence And Use Of Hazardous Substances. Tenant shall not, without Landlord’s prior written consent, keep on or around the Premises, Common Areas or Building, for use, disposal, transportation, treatment, generation, storage or sale, any substances designated as, or containing components designated as hazardous, dangerous, toxic or harmful (collectively referred to as “Hazardous Substances”), and/or are subject to regulation by any federal, state or local law, regulation, statute or ordinance, except for products normally used in general business offices that constitute hazardous substances, provided that such products are used, stored and disposed of in accordance with applicable laws and manufacturer’s and supplier’s guidelines. Section 17.2 Cleanup Costs, Default And Indemnification. Tenant shall be fully and completely liable to Landlord for any and all clean-up costs and any and all other charges, fees, penalties (civil and criminal) imposed by any governmental authority with respect to Tenant’s use, disposal, transportation, treatment, generation, storage and/or sale of Hazardous Substances, in or about the Premises, Common Areas or Building, whether or not consented to by Landlord. Tenant shall indemnify, defend and save Landlord harmless from any and all of the costs, fees, penalties, liabilities and charges incurred by, assessed against or imposed upon Landlord (as well as Landlord’s attorneys’ fees and costs) as a result of Tenant’s use, disposal, transportation, treatment, generation, storage and/or sale of Hazardous Substances. Landlord represents and warrants to Tenant that there are no Hazardous Substances in, on or under the Building or the Property. Landlord further agrees to hold Tenant harmless from and against any and all damages, charges, cleanup costs, remedial actions, costs and expenses (including reasonable attorney fees) which may be imposed on, incurred or paid by, or assessed against Tenant, the Premises or the Property by reason of, or in connection with the existence of Hazardous Substances on or in the property or from the release from the Property except for those caused by Tenant and its employees and agents. ARTICLE 18 SIGNAGE Section 18.1 Signage. Landlord shall include Conference Center identity signage in the Building elevators and Directory located in the first and third floor lobby directories. Tenant may inscribe Tenant signage on the front door of the Tenant's Space or the wall adjacent to the Tenant's Space so long as such signage is professional, neat and attractive. Tenant shall not place any additional exterior signage on the Building. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -24- ARTICLE 19 MISCELLANEOUS Section 19.1 Headings. The headings used in this Lease are for convenience only. They shall not be construed to limit or to extend the meaning of any part of this Lease. Section 19.2 Amendments. Any amendments or additions to this Lease shall be in writing by the parties hereto, and neither Tenant nor Landlord shall be bound by any verbal or implied agreements. Section 19.3 Time Of The Essence. Time is of the essence of this Lease. Section 19.4 No Recording. Tenant shall not record this Lease or any notice hereof without the prior written consent of Landlord. Section 19.5 Entire Agreement. This Lease contains the entire agreement of the parties hereto with respect to the matters covered hereby, and no other agreement, statement or promise made by any party hereto, or to any employee, officer or agent of any party hereto, which is not contained herein, shall be binding or valid. Section 19.6 Language. The words “Landlord” and “Tenant”, when used herein, shall be applicable to one (1) or more persons, as the case may be, and the singular shall include the plural and the neuter shall include the masculine and feminine, and if there be more than one (1), the obligations hereof shall be joint and several. The word “persons” whenever used shall include individuals, firms, associations and corporations and any other legal entity. The language in all parts of this Lease shall in all cases be construed as a whole and in accordance with its fair meaning, and shall not be construed strictly for or against Landlord or Tenant. Section 19.7 Invalidity. If any provision of this Lease shall be deemed to be invalid, void or illegal, it shall in no way affect, impair or invalidate any other provision hereof. Section 19.8 Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent or other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, and the exact amount of those costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by the terms of any mortgage or deed of trust covering the Premises. Therefore, in the event Tenant shall fail to pay any installment of Rent or other sum when due hereunder within ten (10) days after notice of default of payment is given by Landlord, Tenant shall pay to Landlord as Additional Rent a late charge equal to the lesser of $300.00 or five percent (5%) of any amount due by Tenant which is not so timely paid. A Thirty Dollar ($30.00) charge will be paid by the Tenant to the Landlord for each returned check. In the event Landlord pays any sum or expense on behalf of Tenant which Tenant is obligated to pay hereunder, or in the event Landlord expends any other sum or incurs any expense, or Tenant fails to pay any sum due hereund er, 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -25- Landlord shall be entitled to receive interest upon that sum at the rate of twelve percent (12%) per annum until paid. Section 19.9 Computation Of Time. The word “day” means “calendar day” herein, and the computation of time shall include all Saturdays, Sundays and holidays and shall be based upon a 365-day year for purposes of determining time periods specified herein. Section 19.10 Applicable Law. This Lease shall be interpreted and construed under and pursuant to the laws of the State of Washington. Section 19.11 Attorneys’ Fees. In the event either party requires the services of any attorney in connection with enforcing the terms of this Lease or in the event suit is brought for the recovery of any Rent or other charges due under this Lease for the breach of any covenant or condition of this Lease, or for the restitution of the Premises to Landlord, and/or eviction of Tenant during the Term of this Lease or after the expiration of the Term of this Lease, the prevailing party will be entitled to a reasonable sum for attorneys’ fees, witness fees and other court costs, both at trial and on appeal. Section 19.12 Termination. Upon the termination of this Lease by expiration of time or otherwise, the rights of Tenant and all persons claiming under Tenant in and to the Premises shall cease except in situations when a court of competent jurisdiction determines that the Lease was wrongfully terminated. Section 19.14 Name Of Building. In the event Landlord chooses to change the name of the Building, Tenant agrees that such change shall not affect in any way its obligations under this Lease, and that, except for the name change, all terms and conditions of this Lease shall remain in full force and effect. Tenant agrees further that such name change shall not require a formal amendment to this Lease, but shall be effective upon Tenant’s receipt of written notification from Landlord of said change. Section 19.15 Rules And Regulations. Tenant agrees to abide by and adhere to any rules and regulations for the Building, and all amendments thereto, which may be promulgated from time to time by Landlord which do not materially change the provisions of this Lease. The rules and regulations currently in effect upon the date of execution of this Lease are set forth as Exhibit E attached hereto. Section 19.16 Survival. Those provisions of this Lease which, in order to be given full effect, require performance by either Landlord or Tenant following the termination of this Lease shall survive the Termination Date. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -26- IN WITNESS WHEREOF, this Lease Agreement is executed on the day and year first written above. LANDLORD: KITSAP TRANSIT By: Name: John Clauson Title: Executive Director TENANT: CITY OF BREMERTON By: Name: Title: STATE OF WASHINGTON ) ) ss. COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that the person appearing before me and making this acknowledgment is the person whose true signature appears on this document. On this _____ day of _________________, 2013 before me personally appeared JOHN CLAUSON, to me known to be the Executive Director of Kitsap Transit, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Public in and for the State of Washington, residing at My Commission Expires: [Type or Print Notary Name] 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -27- STATE OF WASHINGTON ) ) ss. COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that the person appearing before me and making this acknowledgment is the person whose true signature appears on this document. On this _____ day of _________________, 2013, before me personally appeared PATTY LENT, to me known to be the Mayor of City of Bremerton, the municipal corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said municipal, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Public in and for the State of Washington, residing at My Commission Expires: [Type or Print Notary Name] 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -1- EXHIBIT A LEGAL DESCRIPTION Intentionally Deleted 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -1- EXHIBIT B THIRD FLOOR SITE PLAN 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -2- EXHIBIT C Premises Acceptance Acknowledgment Landlord and Tenant agree as follows: 1. Landlord has delivered the Premises in conformance with the Lease and Tenant accepts the Premises as of the _____ day of ________________, 2013. 2. The Rentable Square Feet of the premises is _____________. 3. The amount of initial Minimum Rent is $____________. 4. The Rentable Square Feet of the Building is _________. 5. The initial amount of Tenant's share of Operating Costs is $____________. __________ __________ Landlord's Initials Tenant's Initials 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -3- EXHIBIT D Operating Costs - Additional Rent 1. Operating Costs Defined. The term "Operating Costs" as used herein shall mean all costs, expenses and other charges incurred by Landlord in connection with the operation and maintenance of the Building a first class, mixed use retail/office building complex. The term "Operating Costs" shall exclude the specific "Exclusions" set forth in Section 2. Subject to the Exclusions, Operating costs shall include, but not be limited to: 1.1 All supplies and materials used in the operation and maintenance of the Building. 1.2 Unless metered and paid separately by the Tenant, the proportionate cost of water and power, air conditioning and ventilating the Building, the Common Areas and the Premises. 1.3 Cost of maintenance, depreciation and replacement of machinery, tools and equipment (if owned by Landlord) and for rental paid for such machinery, tools and equipment (if rented) used in connection with the operation or maintenance of the Building. 1.4 All premiums and deductibles on policies of compensation, public liability, property damage, automobile, garage keepers and any other policies of insurance maintained by Landlord with respect to the Building and abutting Common Areas or any insurable interest therein. 1.5 Cost of janitorial services for the Common Areas and costs associated with the trash and refuse removal and recycling services, receptacles and containers provided by Landlord for the tenants of the Building. 1.6 Cost of repairs, maintenance and upkeep of the Building and Common Areas, including the electrical, plumbing and mechanical systems; landscaping areas, exterior power washing, exterior window washing; roof and canopy cleaning, repairs and maintenance; refurbishing and painting; and floor and wall covering replacement. 1.7 Any capital improvements made or installed (i) for purposes of saving labor or otherwise reducing applicable operating costs amortized over the useful life of such improvements, as determined by Landlord in accordance with generally accepted accounting 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -4- principles and practices in effect at the time of acquisition of the capital item; and (ii) for the purpose of complying with governmental rules or regulations adopted after the building was first constructed. Any capital improvement expenditures shall be amortized in accordance with generally accepted accounting principles and included as an operating expense only to the extent the amortized portion applies to the year in question. 1.8 Elevator inspection, maintenance and repairs. 1.9 All taxes due any unit of government. 1.10 Cost of all accounting, legal and other professional fees incurred in connection with the operation of the Building. 1.11 Cost of providing security services and pest control for the Building and Common Areas as deemed necessary by Landlord. 1.12 A property management fee not to exceed 5% of the gross rents payable by all Tenants of the Building (including imputed rents attributable to Landlord's occupancy of the Second Floor). 1.13 Cost of replacing non-specialty lamps, blubs, starters and ballasts used in the Building Common Areas. 1.14 Cost of cleaning, maintaining, repairing and patching abutting sidewalks. 2. Exclusions. Operating Costs under this Lease shall specifically exclude the following: 2.1 The following costs and expenses specific to the first floor retail tenant space: a. Cost of water, power, heating, lighting, air conditioning and ventilation of such retail space; b. Cost of cleaning, repairing, maintaining or replacing storefront offices, windows and doors; c. Cost of repairing, maintaining, replacing or operating plumbing, electrical, mechanical, fire suppression and HVAC systems. 2.2 Any costs or expenses attributable to the Bremerton Harborside Conference Center. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -5- 2.3 The following Building costs and expenses: a. Expenses for which the Landlord is reimbursed or indemnified (either by an insurer, condemnor, tenant or otherwise); b. Expenses incurred in leasing or procuring tenants (including, without limitation, lease commissions, legal expenses and expenses of renovating space for tenants); c. Legal expenses arising out of disputes with tenants or the enforcement of the provisions of any lease of space in the Building; interest or amortization payments on any mortgage or mortgages and rental under any ground or underlying lease or leases; d. Cost of any work or service performed for or facilities furnished to a tenant at the tenant's cost; e. Costs of major capital improvements for major repairs to the Building shell and remodeling or altering the Building and common Areas as expressly provided elsewhere either in this Exhibit or elsewhere in the Lease. f. Any costs or expenses attributable to the improvement, alteration or repair of the interior of any other tenant spaces; and g. Landlord's own overhead, loan payments, amortization, depreciation on the Building or equipment therein and landlord's tenant improvements for its occupancy of the Second Floor of the Building. h. Landlord's cost of maintaining Kitsap Transit parking so long as conference center employees and guests utilize other parking not owned or maintained by Kitsap Transit. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -6- EXHIBIT E RULES AND REGULATIONS 1. The sidewalks, halls, passages, elevators, stairways, exits and entrances of the Building shall not be obstructed by Tenant or used by it for any purpose other than for ingress and egress from the Premises. Excluding the first floor passageway and sidewalks, the halls, passages, exits, entrances, elevators, retail space, balconies and stairways are not for the use of the general public, and Landlord shall in all cases retain the right to control and prevent access to those areas by all persons whose presence in the judgment of Landlord would be prejudicial to the safety, character, reputat ion and interests of the Building and its tenants, provided that nothing in this Lease shall be construed to prevent access to persons with whom Tenant normally deals in the ordinary course of its business, unless those persons are engaged in illegal activ ities. Tenant shall not go upon the roof of the Building, except in areas that Landlord may designate as “Common Areas” from time to time. 2. The Premises shall not be used for lodging or sleeping. 3. Tenant shall not alter any lock or install a new or additional lock or any bolt on any access door of the Premises without furnishing Landlord with a key for any lock and obtaining Landlord’s prior permission. Tenant, upon the termination of its tenancy, shall deliver to Landlord all keys and/or security cards to doors in the Building and the Premises that shall have been furnished to Tenant and in the event of loss of any keys and/or security cards so furnished, shall pay Landlord for the lost keys and/or security cards and changing of locks as a result of such loss. 4. The persons contracted by Tenant to move equipment or other items in or out of the Building must be acceptable to Landlord. Landlord shall have the right to prescribe the weight, size and position of all equipment, materials, supplies, furniture or other property brought into the Building. No safes or other objects larger or heavier than the freight elevator of the Building is limited to carry shall be brought into or installed on the Premises without Landlord’s prior written consent. Heavy objects shall, if considered necessary by Landlord, stand on wood strips of thickness as is necessary to properly distribute the weight of those objects. Landlord will not be responsible for loss of or damage to any property from any cause, and all damage done to the Building by moving or maintaining Tenant’s property shall be repaired at the expense of Tenant. The moving of heavy objects shall occur only between those hours as may be designated by and only upon written notice to Landlord and the persons employed to move heavy objects in or out of the Building must be acceptable to Landlord. 5. Tenant shall not use or keep in the Premises or the Building any kerosene, gasoline or flammable or combustible fluid or materials or use any method of heating or air conditioning other than that supplied by Landlord. Tenant shall not sweep or throw or permit to be swept or thrown from the Premises any debris or other substance 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -7- into any of the corridors, halls or lobbies or out of the doors or windows or into the stairways of the Building and Tenant shall not use, keep or permit to be used or kept any foul or noxious gas or substance in the Premises. Tenant shall not use, keep or permit or suffer the Premises to be occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Building by reason of noise, odors (excluding bread baking) and/or vibrations, or interfere in any way with other tenants or those having business in the Building. 6. Tenant shall see that the doors of the Premises are closed and securely locked when Tenant’s employees leave the Premises, after hours. Tenant shall lock the exterior Building Doors and elevators, if Tenant is present on the Premises on weekends, before 7:30 a.m. or after 5:30 p.m. on weekends. 7. The restrooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed, no foreign substance of any kind whatsoever shall be deposited in any of them, and any damage resulting to them from Tenant’s misuse shall be paid for by Tenant. 8. Except with the prior written consent of Landlord, Tenant shall not sell, or permit the sale from the Premises of newspapers, magazines, periodicals, theatre tickets or any other goods, merchandise or service, nor shall the Premises be used for manufacturing of any kind, or for any business or activity other than that specifically provided for in Tenant’s Lease. Tenant shall not install any radio or television antenna, loudspeaker or other device on the roof or exterior walls of the Building, unless approved by Landlord. 10. Tenant shall not use in any space, or in the Common Areas of the Building, any hand trucks except those equipped with rubber tires and side guards or other material handling equipment as Landlord may approve. No bicycles, vehicles, motorcycles or animals of any kind shall be brought by Tenant into the Building or kept in or about the Premises unless approved by the Landlord. 11. No sign, advertisement or notice visible from the exterior of the Premises shall be inscribed, painted or affixed by Tenant on any part of the Building or the Premises except as provided in Article 21. If Landlord shall have permitted an exception at anytime, whether before or after the execution of this Lease, that consent shall in no way operate as a waiver or release of any of the provisions of this Rule 11 or of this Lease, and shall be deemed to relate only to the particular sign, advertisement or notice so permitted by Landlord 12. Except as shown in the design plan approved by Landlord, the sashes, sash doors, windows, glass relights, and any lights or skylights that reflect or admit light into the halls or other places of the Building shall not be covered or obstructed and, there shall be no hanging plants or other similar objects in the immediate vicinity of the windows or placed upon the window sills or hung from the window heads. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -8- 13. No tenant shall lay linoleum or other similar floor covering so that it is affixed to the floor of the Premises in any manner except by a paste, or other material which may easily be removed with water, the use of cement or other similar adhesive materials being expressly prohibited. The method of affixing any linoleum or other similar floor covering to the floor, as well as the method of affixing carpets or rugs to the Premises, shall be subject to approval by Landlord. The expense of repairing any damage resulting from a violation of this Rule 14 shall be borne by the Tenant by whom, or by whose agents, clerks, employees or visitors, the damage shall have been caused. Subway shall be entitled to install its standard floor tiles. 14. All loading, unloading, and delivery of merchandise, supplies, materials and furniture to the Premises shall be made during reasonable hours and in a m anner not causing disruption to other Tenants and at and through any service location, elevator and/or delivery areas designated by Landlord. 15. Canvassing, soliciting, peddling or distribution of handbills or any other written material in the Building is prohibited and Tenant shall cooperate to prevent these activities. 16. Tenant shall not permit the use or the operation of any coin operated machines on the Premises, including, without limitation, vending machines, video games, pinball machines, or pay telephones without the prior written consent of Landlord. 17. Landlord may direct the use of all pest extermination throughout the Building and/or Premises at intervals as Landlord may require. 18. As to telephone, Cable T.V. or internet connection lines desired by Tenant, Landlord will direct service technicians as to where and how the wires are to be introduced. No boring or cutting for wires or otherwise shall be made without directions from Landlord. 19. Tenant shall immediately, upon request from Landlord (which request need not be in writing), reduce its lighting in the Premises for temporary periods designated by Landlord, when required in Landlord’s judgment to prevent overloads of mechanical or electrical systems of the Building. 20. Landlord reserves the right to select the name of the Building and to change the name as it may deem appropriate from time to time, and Tenant shall not refer to the Building by any name other than: (a) the names as selected by Landlord (as that name may be changed from time to time), or (b) the postal address, approved by the United States Post Office. Tenant shall not use the name of the Building in any respect other than as an address of its operation in the Building without the prior written consent of Landlord. 21. The trash dumpster in the Parking Garage designated for Building Tenants is limited to trash generated on the Premises through Tenant’s normal conduct of its business and shall not be used for personal use by Tenant, Tenant’s employees or the invitees of Tenant. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -9- 22. Landlord may waive any one or more of the Rules and Regulations for the benefit of any particular tenant or tenants, but no waiver by Landlord shall be construed as a waiver of the Rules and Regulations in favor of any other tenant or tenants, nor prevent Landlord from thereafter enforcing any Rules and Regulations against any or all of the tenants in the Building. 23. Wherever the word “Tenant” occurs in these Rules and Regulations, it is understood and agreed that it shall mean Tenant’s assigns, subtenants, associates, agents, clerks, employees and visitors. Wherever the word “Landlord” occurs in these Rules and Regulations, it is understood and agreed that it shall mean Landlord’s assigns, agents, clerks, employees and visitors. 24. During major community events and festivals (Blackberry Festival, Art Walk) Landlord reserves the right to cooperate with the event sponsor to allow use of the Building Common Areas and restrict access to the Building, Parking Garage and Common Areas. 25. These Rules and Regulations are in addition to, and shall not be construed in any way to modify, alter or amend, in whole or part, the terms, covenants, agreements and conditions of any Lease of Premises in the Building. 26. Landlord reserves the right to make other and reasonable rules and regulations as in its judgment may from time to time be needed for the safety, care and cleanliness of the Building, and for the preservation of good order therein. 10-3-13P.M. CITY OF BREMERTON, HARBORSIDE -10- EXHIBIT F LANDLORD'S IMPROVEMENT EXPENDITURES Landlord has Budgeted $200,000.00 (the "Budgeted Amount") for Building Improvements in accordance with and subject to the following: A. Landlord agrees to make certain Elevator Improvements to improve the speed and interior of the elevators serving the Building (including the underground parking garage). It is anticipated these costs will not exceed approximately $118,445.00. B. Landlord agrees to contribute the difference between the Budgeted Amount and the actual cost of the Elevator Improvements towards the cost of the following improvements associated with Tenant's Improvements in the following order of priority: 1. Structural modifications for floor loads and HVAC 2. HVAC capacity improvements and associated electrical work to support the HVAC capacity improvements 3. Fireproofing for HVAC and structural modifications including required roof repairs. 4. Additional minor building system modifications AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Contract Award to Jones & Roberts, Inc. for Construction of the Kitsap Conference Center Expansion Project Study Session Date: October 9, 2013 COUNCIL MEETING Date: October 16, 2013 Department: PW&U Presenter: Martin Phone: X 5758 SUMMARY: Sealed bids were solicited for the Kitsap Conference Center expansion project September 9, 2013. Bids were opened at 3:00 p.m. Monday, September 30, 2013. 14 bids were received. The low bidder was Jones & Roberts, Inc. out of Olympia, with a bid amount of $746,900 (plus sales tax), inclusive of all alternates. Staff verified that Jones & Roberts, Inc. met all requirements of the bid documents and recommend the bid be awarded to Jones & Roberts. ATTACHMENTS: 1. Bid Summary 2. Project Financing Summary 3.Proposed Contract FISCAL IMPACTS (Include Budgeted Amount): See attached project financing summary sheet STUDY SESSION AGENDA: ☐ No Discussion ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☒ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to approve award and enter into a contract with Jones & Roberts, Inc. in the amount of $746,900 (plus sales tax) to construct the Kitsap Conference Center Expansion Project, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/02/12 Kitsap Conference Center Project Financing Update October 2, 2013 Original Project Budget, with revisions annotated: Conference Center 3rd Floor Expansion $900,000  Design and Bid Package - 79,000  Construction management - 30,000  Furniture and Equipment - 72,540 0 (convert to ongoing operational expense)  Sales Tax - 52,460 64,242  Window treatments - 30,000  Testing services - 5,000  Commissioning services - 8,000  Permits - 13,000 15,642 Amount available for construction $610,000 668,116 Low bid received = $746,900 (with all alternates) Contingency reserve at 3% = (.03)(746,900) = $22,407 Additional funding needed: $746,900 + $22,407 – $668,116 = $101,191 Additional funding proposals/commitments underway: 1) Kitsap Transit: $200,000 for elevators (and/or additional work related to landlord responsibility) -$103,445 for elevator retrofit/valve replacement -$ 15,000 to improve elevator interiors -$ 81,555 for partial reimbursement of work attributed to facility owner obligation 0 2) Kitsap Public Facilities District: a request for an administrative increase of 5% of the $400,000 PFD award will be considered by the PFD Board at its meeting on Monday, October 28, 2013. We will work with Kitsap Transit and the Kitsap Public Facilities District to achieve this additional funding. If accomplished, then additional outside funding would be $81,555 + $20,000 = $101,555, exceeding the minimum funding requirement by $364. This will provide funding for the base bid and all alternates, including 3% for contingencies. AIA® Document A201TM – 2007 General Conditions of the Contract for Construction AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 1 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. ELECTRONIC COPYING of any portion of this AIA® Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document. for the following PROJECT: (Name and location or address) «City of Bremerton Kitsap Conference Center Expansion» «Bremerton WA» THE OWNER: (Name, legal status and address) «City of Bremerton»« » «100 Oyster Bay Avenue N. Bremerton, WA 98312» THE ARCHITECT: (Name, legal status and address) «Rice Fergus Miller, Inc.»« » «275 5th Street, Suite 100 Bremerton, WA 98337» TABLE OF ARTICLES 1 GENERAL PROVISIONS 2 OWNER 3 CONTRACTOR 4 ARCHITECT 5 SUBCONTRACTORS 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7 CHANGES IN THE WORK 8 TIME 9 PAYMENTS AND COMPLETION 10 PROTECTION OF PERSONS AND PROPERTY 11 INSURANCE AND BONDS 12 UNCOVERING AND CORRECTION OF WORK 13 MISCELLANEOUS PROVISIONS 14 TERMINATION OR SUSPENSION OF THE CONTRACT 15 CLAIMS AND DISPUTES AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 2 INDEX (Topics and numbers in bold are section headings.) Acceptance of Nonconforming Work 9.6.6, 9.9.3, 12.3 Acceptance of Work 9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3, 12.3 Access to Work 3.16, 6.2.1, 12.1 Accident Prevention 10 Acts and Omissions 3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 8.3.1, 9.5.1, 10.2.5, 10.2.8, 13.4.2, 13.7, 14.1, 15.2 Addenda 1.1.1, 3.11 Additional Costs, Claims for 3.7.4, 3.7.5, 6.1.1, 7.3.7.5, 10.3, 15.1.4 Additional Inspections and Testing 9.4.2, 9.8.3, 12.2.1, 13.5 Additional Insured 11.1.4 Additional Time, Claims for 3.2.4, 3.7.4, 3.7.5, 3.10.2, 8.3.2, 15.1.5 Administration of the Contract 3.1.3, 4.2, 9.4, 9.5 Advertisement or Invitation to Bid 1.1.1 Aesthetic Effect 4.2.13 Allowances 3.8, 7.3.8 All-risk Insurance 11.3.1, 11.3.1.1 Applications for Payment 4.2.5, 7.3.9, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7, 9.10, 11.1.3 Approvals 2.1.1, 2.2.2, 2.4, 3.1.3, 3.10.2, 3.12.8, 3.12.9, 3.12.10, 4.2.7, 9.3.2, 13.5.1 Arbitration 8.3.1, 11.3.10, 13.1, 15.3.2, 15.4 ARCHITECT 4 Architect, Definition of 4.1.1 Architect, Extent of Authority 2.4, 3.12.7, 4.1, 4.2, 5.2, 6.3, 7.1.2, 7.3.7, 7.4, 9.2, 9.3.1, 9.4, 9.5, 9.6.3, 9.8, 9.10.1, 9.10.3, 12.1, 12.2.1, 13.5.1, 13.5.2, 14.2.2, 14.2.4, 15.1.3, 15.2.1 Architect, Limitations of Authority and Responsibility 2.1.1, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1, 4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12, 4.2.13, 5.2.1, 7.4, 9.4.2, 9.5.3, 9.6.4, 15.1.3, 15.2 Architect’s Additional Services and Expenses 2.4, 11.3.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4 Architect’s Administration of the Contract 3.1.3, 4.2, 3.7.4, 15.2, 9.4.1, 9.5 Architect’s Approvals 2.4, 3.1.3, 3.5, 3.10.2, 4.2.7 Architect’s Authority to Reject Work 3.5, 4.2.6, 12.1.2, 12.2.1 Architect’s Copyright 1.1.7, 1.5 Architect’s Decisions 3.7.4, 4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.2.14, 6.3, 7.3.7, 7.3.9, 8.1.3, 8.3.1, 9.2, 9.4.1, 9.5, 9.8.4, 9.9.1, 13.5.2, 15.2, 15.3 Architect’s Inspections 3.7.4, 4.2.2, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 13.5 Architect’s Instructions 3.2.4, 3.3.1, 4.2.6, 4.2.7, 13.5.2 Architect’s Interpretations 4.2.11, 4.2.12 Architect’s Project Representative 4.2.10 Architect’s Relationship with Contractor 1.1.2, 1.5, 3.1.3, 3.2.2, 3.2.3, 3.2.4, 3.3.1, 3.4.2, 3.5, 3.7.4, 3.7.5, 3.9.2, 3.9.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3, 4.2, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3.7, 12, 13.4.2, 13.5, 15.2 Architect’s Relationship with Subcontractors 1.1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4, 11.3.7 Architect’s Representations 9.4.2, 9.5.1, 9.10.1 Architect’s Site Visits 3.7.4, 4.2.2, 4.2.9, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5 Asbestos 10.3.1 Attorneys’ Fees 3.18.1, 9.10.2, 10.3.3 Award of Separate Contracts 6.1.1, 6.1.2 Award of Subcontracts and Other Contracts for Portions of the Work 5.2 Basic Definitions 1.1 Bidding Requirements 1.1.1, 5.2.1, 11.4.1 Binding Dispute Resolution 9.7, 11.3.9, 11.3.10, 13.1, 15.2.5, 15.2.6.1, 15.3.1, 15.3.2, 15.4.1 Boiler and Machinery Insurance 11.3.2 Bonds, Lien 7.3.7.4, 9.10.2, 9.10.3 Bonds, Performance, and Payment 7.3.7.4, 9.6.7, 9.10.3, 11.3.9, 11.4 AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 3 Building Permit 3.7.1 Capitalization 1.3 Certificate of Substantial Completion 9.8.3, 9.8.4, 9.8.5 Certificates for Payment 4.2.1, 4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7, 9.10.1, 9.10.3, 14.1.1.3, 14.2.4, 15.1.3 Certificates of Inspection, Testing or Approval 13.5.4 Certificates of Insurance 9.10.2, 11.1.3 Change Orders 1.1.1, 2.4, 3.4.2, 3.7.4, 3.8.2.3, 3.11, 3.12.8, 4.2.8, 5.2.3, 7.1.2, 7.1.3, 7.2, 7.3.2, 7.3.6, 7.3.9, 7.3.10, 8.3.1, 9.3.1.1, 9.10.3, 10.3.2, 11.3.1.2, 11.3.4, 11.3.9, 12.1.2, 15.1.3 Change Orders, Definition of 7.2.1 CHANGES IN THE WORK 2.2.1, 3.11, 4.2.8, 7, 7.2.1, 7.3.1, 7.4, 8.3.1, 9.3.1.1, 11.3.9 Claims, Definition of 15.1.1 CLAIMS AND DISPUTES 3.2.4, 6.1.1, 6.3, 7.3.9, 9.3.3, 9.10.4, 10.3.3, 15, 15.4 Claims and Timely Assertion of Claims 15.4.1 Claims for Additional Cost 3.2.4, 3.7.4, 6.1.1, 7.3.9, 10.3.2, 15.1.4 Claims for Additional Time 3.2.4, 3.7.4, 6.1.1, 8.3.2, 10.3.2, 15.1.5 Concealed or Unknown Conditions, Claims for 3.7.4 Claims for Damages 3.2.4, 3.18, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1, 11.3.5, 11.3.7, 14.1.3, 14.2.4, 15.1.6 Claims Subject to Arbitration 15.3.1, 15.4.1 Cleaning Up 3.15, 6.3 Commencement of the Work, Conditions Relating to 2.2.1, 3.2.2, 3.4.1, 3.7.1, 3.10.1, 3.12.6, 5.2.1, 5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1, 11.1, 11.3.1, 11.3.6, 11.4.1, 15.1.4 Commencement of the Work, Definition of 8.1.2 Communications Facilitating Contract Administration 3.9.1, 4.2.4 Completion, Conditions Relating to 3.4.1, 3.11, 3.15, 4.2.2, 4.2.9, 8.2, 9.4.2, 9.8, 9.9.1, 9.10, 12.2, 13.7, 14.1.2 COMPLETION, PAYMENTS AND 9 Completion, Substantial 4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 12.2, 13.7 Compliance with Laws 1.6, 3.2.3, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 9.6.4, 10.2.2, 11.1, 11.3, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3, 15.2.8, 15.4.2, 15.4.3 Concealed or Unknown Conditions 3.7.4, 4.2.8, 8.3.1, 10.3 Conditions of the Contract 1.1.1, 6.1.1, 6.1.4 Consent, Written 3.4.2, 3.7.4, 3.12.8, 3.14.2, 4.1.2, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.3.1, 13.2, 13.4.2, 15.4.4.2 Consolidation or Joinder 15.4.4 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 1.1.4, 6 Construction Change Directive, Definition of 7.3.1 Construction Change Directives 1.1.1, 3.4.2, 3.12.8, 4.2.8, 7.1.1, 7.1.2, 7.1.3, 7.3, 9.3.1.1 Construction Schedules, Contractor’s 3.10, 3.12.1, 3.12.2, 6.1.3, 15.1.5.2 Contingent Assignment of Subcontracts 5.4, 14.2.2.2 Continuing Contract Performance 15.1.3 Contract, Definition of 1.1.2 CONTRACT, TERMINATION OR SUSPENSION OF THE 5.4.1.1, 11.3.9, 14 Contract Administration 3.1.3, 4, 9.4, 9.5 Contract Award and Execution, Conditions Relating to 3.7.1, 3.10, 5.2, 6.1, 11.1.3, 11.3.6, 11.4.1 Contract Documents, Copies Furnished and Use of 1.5.2, 2.2.5, 5.3 Contract Documents, Definition of 1.1.1 Contract Sum 3.7.4, 3.8, 5.2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2, 11.3.1, 14.2.4, 14.3.2, 15.1.4, 15.2.5 Contract Sum, Definition of 9.1 Contract Time 3.7.4, 3.7.5, 3.10.2, 5.2.3, 7.2.1.3, 7.3.1, 7.3.5, 7.4, 8.1.1, 8.2.1, 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1, 14.3.2, 15.1.5.1, 15.2.5 Contract Time, Definition of 8.1.1 AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 4 CONTRACTOR 3 Contractor, Definition of 3.1, 6.1.2 Contractor’s Construction Schedules 3.10, 3.12.1, 3.12.2, 6.1.3, 15.1.5.2 Contractor’s Employees 3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 11.1.1, 11.3.7, 14.1, 14.2.1.1 Contractor’s Liability Insurance 11.1 Contractor’s Relationship with Separate Contractors and Owner’s Forces 3.12.5, 3.14.2, 4.2.4, 6, 11.3.7, 12.1.2, 12.2.4 Contractor’s Relationship with Subcontractors 1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2, 11.3.1.2, 11.3.7, 11.3.8 Contractor’s Relationship with the Architect 1.1.2, 1.5, 3.1.3, 3.2.2, 3.2.3, 3.2 .4, 3.3.1, 3.4.2, 3.5, 3.7.4, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.3, 4.2, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3.7, 12, 13.5, 15.1.2, 15.2.1 Contractor’s Representations 3.2.1, 3.2.2, 3.5, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.8 .2 Contractor’s Responsibility for Those Performing the Work 3.3.2, 3.18, 5.3, 6.1.3, 6.2, 9.5.1, 10.2.8 Contractor’s Review of Contract Documents 3.2 Contractor’s Right to Stop the Work 9.7 Contractor’s Right to Terminate the Contract 14.1, 15.1.6 Contractor’s Submittals 3.10, 3.11, 3.12.4, 4.2.7, 5.2.1, 5.2.3, 9.2, 9.3, 9.8.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3, 11.1.3, 11.4.2 Contractor’s Superintendent 3.9, 10.2.6 Contractor’s Supervision and Construction Procedures 1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 6.1.3, 6.2.4, 7.1.3, 7.3.5, 7.3.7, 8.2, 10, 12, 14, 15.1.3 Contractual Liability Insurance 11.1.1.8, 11.2 Coordination and Correlation 1.2, 3.2.1, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1 Copies Furnished of Drawings and Specifications 1.5, 2.2.5, 3.11 Copyrights 1.5, 3.17 Correction of Work 2.3, 2.4, 3.7.3, 9.4.2, 9.8.2, 9.8.3, 9.9.1, 12.1.2, 12.2 Correlation and Intent of the Contract Documents 1.2 Cost, Definition of 7.3.7 Costs 2.4, 3.2.4, 3.7.3, 3.8.2, 3.15.2, 5.4.2, 6.1.1, 6.2.3, 7.3.3.3, 7.3.7, 7.3.8, 7.3.9, 9.10.2, 10.3.2, 10.3.6, 11.3, 12.1.2, 12.2.1, 12.2.4, 13.5, 14 Cutting and Patching 3.14, 6.2.5 Damage to Construction of Owner or Separate Contractors 3.14.2, 6.2.4, 10.2.1.2, 10.2.5, 10.4, 11.1.1, 11.3, 12.2.4 Damage to the Work 3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.4, 11.3.1, 12.2.4 Damages, Claims for 3.2.4, 3.18, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1, 11.3.5, 11.3.7, 14.1.3, 14.2.4, 15.1.6 Damages for Delay 6.1.1, 8.3.3, 9.5.1.6, 9.7, 10.3.2 Date of Commencement of the Work, Definition of 8.1.2 Date of Substantial Completion, Definition of 8.1.3 Day, Definition of 8.1.4 Decisions of the Architect 3.7.4, 4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 15.2, 6.3, 7.3.7, 7.3.9, 8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4, 15.1, 15.2 Decisions to Withhold Certification 9.4.1, 9.5, 9.7, 14.1.1.3 Defective or Nonconforming Work, Acceptance, Rejection and Correction of 2.3, 2.4, 3.5, 4.2.6, 6.2.5, 9.5.1, 9.5.2, 9.6.6, 9.8.2, 9.9.3, 9.10.4, 12.2.1 Definitions 1.1, 2.1.1, 3.1.1, 3.5, 3.12.1 , 3.12.2, 3.12.3, 4.1.1, 15.1.1, 5.1, 6.1.2, 7.2.1, 7.3.1, 8.1, 9.1, 9.8.1 Delays and Extensions of Time 3.2, 3.7.4, 5.2.3, 7.2.1, 7.3.1, 7.4, 8.3, 9.5.1, 9.7, 10.3.2, 10.4, 14.3.2, 15.1.5, 15.2.5 Disputes 6.3, 7.3.9, 15.1, 15.2 Documents and Samples at the Site 3.11 Drawings, Definition of 1.1.5 Drawings and Specifications, Use and Ownership of 3.11 Effective Date of Insurance 8.2.2, 11.1.2 Emergencies 10.4, 14.1.1.2, 15.1.4 Employees, Contractor’s 3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3.3, 11.1.1, 11.3.7, 14.1, 14.2.1.1 AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 5 Equipment, Labor, Materials or 1.1.3, 1.1.6, 3.4, 3.5, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.7, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.1, 14.2.1.2 Execution and Progress of the Work 1.1.3, 1.2.1, 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3.1, 3.4.1, 3.5, 3.7.1, 3.10.1, 3.12, 3.14, 4.2, 6.2.2, 7.1.3, 7.3.5, 8.2, 9.5.1, 9.9.1, 10.2, 10.3, 12.2, 14.2, 14.3.1, 15.1.3 Extensions of Time 3.2.4, 3.7.4, 5.2.3, 7.2.1, 7.3, 7.4, 9.5.1, 9.7, 10.3.2, 10.4, 14.3, 15.1.5, 15.2.5 Failure of Payment 9.5.1.3, 9.7, 9.10.2, 13.6, 14.1.1.3, 14.2.1.2 Faulty Work (See Defective or Nonconforming Work) Final Completion and Final Payment 4.2.1, 4.2.9, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.3.1, 11.3.5, 12.3, 14.2.4, 14.4.3 Financial Arrangements, Owner’s 2.2.1, 13.2.2, 14.1.1.4 Fire and Extended Coverage Insurance 11.3.1.1 GENERAL PROVISIONS 1 Governing Law 13.1 Guarantees (See Warranty) Hazardous Materials 10.2.4, 10.3 Identification of Subcontractors and Suppliers 5.2.1 Indemnification 3.17, 3.18, 9.10.2, 10.3.3, 10.3.5, 10.3.6, 11.3.1.2, 11.3.7 Information and Services Required of the Owner 2.1.2, 2.2, 3.2.2, 3.12.4, 3.12.10, 6.1.3, 6.1.4, 6.2.5, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4, 15.1.3 Initial Decision 15.2 Initial Decision Maker, Definition of 1.1.8 Initial Decision Maker, Decisions 14.2.2, 14.2.4, 15.2.1, 15.2.2, 15.2.3, 15.2.4, 15.2.5 Initial Decision Maker, Extent of Authority 14.2.2, 14.2.4, 15.1.3, 15.2.1, 15.2.2, 15.2.3, 15.2.4, 15.2.5 Injury or Damage to Person or Property 10.2.8, 10.4 Inspections 3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 12.2.1, 13.5 Instructions to Bidders 1.1.1 Instructions to the Contractor 3.2.4, 3.3.1, 3.8.1, 5.2.1, 7, 8.2.2, 12, 13.5.2 Instruments of Service, Definition of 1.1.7 Insurance 3.18.1, 6.1.1, 7.3.7, 9.3.2, 9.8.4, 9.9.1, 9.10.2, 11 Insurance, Boiler and Machinery 11.3.2 Insurance, Contractor’s Liability 11.1 Insurance, Effective Date of 8.2.2, 11.1.2 Insurance, Loss of Use 11.3.3 Insurance, Owner’s Liability 11.2 Insurance, Property 10.2.5, 11.3 Insurance, Stored Materials 9.3.2 INSURANCE AND BONDS 11 Insurance Companies, Consent to Partial Occupancy 9.9.1 Intent of the Contract Documents 1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4 Interest 13.6 Interpretation 1.2.3, 1.4, 4.1.1, 5.1, 6.1.2, 15.1.1 Interpretations, Written 4.2.11, 4.2.12, 15.1.4 Judgment on Final Award 15.4.2 Labor and Materials, Equipment 1.1.3, 1.1.6, 3.4, 3.5, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.7, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.1, 14.2.1.2 Labor Disputes 8.3.1 Laws and Regulations 1.5, 3.2.3, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 9.6.4, 9.9.1, 10.2.2, 11.1.1, 11.3, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14, 15.2.8, 15.4 Liens 2.1.2, 9.3.3, 9.10.2, 9.10.4, 15.2.8 Limitations, Statutes of 12.2.5, 13.7, 15.4.1.1 Limitations of Liability 2.3, 3.2.2, 3.5, 3.12.10, 3.17, 3.18.1, 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.6.7, 10.2.5, 10.3.3, 11.1.2, 11.2, 11.3.7, 12.2.5, 13.4.2 Limitations of Time 2.1.2, 2.2, 2.4, 3.2.2, 3.10, 3.11, 3.12.5, 3.15.1, 4.2.7, 5.2, 5.3, 5.4.1, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 11.3.1.5, 11.3.6, 11.3.10, 12.2, 13.5, 13.7, 14, 1 5 Loss of Use Insurance 11.3.3 AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 6 Material Suppliers 1.5, 3.12.1, 4.2.4, 4.2.6, 5.2.1, 9.3, 9.4.2, 9.6, 9.10.5 Materials, Hazardous 10.2.4, 10.3 Materials, Labor, Equipment and 1.1.3, 1.1.6, 1.5.1, 3.4.1, 3.5, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.7, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1.2, 10.2.4, 14.2.1.1, 14.2.1.2 Means, Methods, Techniques, Sequences and Procedures of Construction 3.3.1, 3.12.10, 4.2.2, 4.2.7, 9.4.2 Mechanic’s Lien 2.1.2, 15.2.8 Mediation 8.3.1, 10.3.5, 10.3.6, 15.2.1, 15.2.5, 15.2.6, 15.3, 15.4.1 Minor Changes in the Work 1.1.1, 3.12.8, 4.2.8, 7.1, 7.4 MISCELLANEOUS PROVISIONS 13 Modifications, Definition of 1.1.1 Modifications to the Contract 1.1.1, 1.1.2, 3.11, 4.1.2, 4.2.1, 5.2.3, 7, 8.3.1, 9.7, 10.3.2, 11.3.1 Mutual Responsibility 6.2 Nonconforming Work, Acceptance of 9.6.6, 9.9.3, 12.3 Nonconforming Work, Rejection and Correction of 2.3, 2.4, 3.5, 4.2.6, 6.2.4, 9.5.1, 9.8.2, 9.9.3, 9.10.4, 12.2.1 Notice 2.2.1, 2.3, 2.4, 3.2.4, 3.3.1, 3.7.2, 3.12.9, 5.2.1, 9.7, 9.10, 10.2.2, 11.1.3, 12.2.2.1, 13.3, 13.5.1, 13.5.2, 14.1, 14.2, 15.2.8, 15.4.1 Notice, Written 2.3, 2.4, 3.3.1, 3.9.2, 3.12.9, 3.12.10, 5.2.1, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.3.6, 12.2.2.1, 13.3, 14, 15.2.8, 15.4.1 Notice of Claims 3.7.4, 10.2.8, 15.1.2, 15.4 Notice of Testing and Inspections 13.5.1, 13.5.2 Observations, Contractor’s 3.2, 3.7.4 Occupancy 2.2.2, 9.6.6, 9.8, 11.3.1.5 Orders, Written 1.1.1, 2.3, 3.9.2, 7, 8.2.2, 11.3.9, 12.1, 12.2.2.1, 13.5.2, 14.3.1 OWNER 2 Owner, Definition of 2.1.1 Owner, Information and Services Required of the 2.1.2, 2.2, 3.2.2, 3.12.10, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, 11.2, 11.3, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4, 15.1.3 Owner’s Authority 1.5, 2.1.1, 2.3, 2.4, 3.4.2, 3.8.1, 3.12.10, 3.14.2, 4.1.2, 4.1.3, 4.2.4, 4.2.9, 5.2.1, 5.2.4, 5.4.1, 6.1, 6.3, 7.2.1, 7.3.1, 8.2.2, 8.3.1, 9.3.1, 9.3.2, 9.5.1, 9.6.4, 9.9.1, 9.10.2, 10.3.2, 11.1.3, 11.3.3, 11.3.10, 12.2.2, 12.3, 13.2.2, 14.3, 14.4, 15.2.7 Owner’s Financial Capability 2.2.1, 13.2.2, 14.1.1.4 Owner’s Liability Insurance 11.2 Owner’s Relationship with Subcontractors 1.1.2, 5.2, 5.3, 5.4, 9.6.4, 9.10.2, 14.2.2 Owner’s Right to Carry Out the Work 2.4, 14.2.2 Owner’s Right to Clean Up 6.3 Owner’s Right to Perform Construction and to Award Separate Contracts 6.1 Owner’s Right to Stop the Work 2.3 Owner’s Right to Suspend the Work 14.3 Owner’s Right to Terminate the Contract 14.2 Ownership and Use of Drawings, Specifications and Other Instruments of Service 1.1.1, 1.1.6, 1.1.7, 1.5, 2.2.5, 3.2.2, 3.11, 3.17, 4.2.12, 5.3 Partial Occupancy or Use 9.6.6, 9.9, 11.3.1.5 Patching, Cutting and 3.14, 6.2.5 Patents 3.17 Payment, Applications for 4.2.5, 7.3.9, 9.2, 9.3, 9.4, 9.5, 9.6.3, 9.7, 9.8.5, 9.10.1, 14.2.3, 14.2.4, 14.4.3 Payment, Certificates for 4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4 Payment, Failure of 9.5.1.3, 9.7, 9.10.2, 13.6, 14.1.1.3, 14.2.1.2 Payment, Final 4.2.1, 4.2.9, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 12.3, 13.7, 14.2.4, 14.4.3 Payment Bond, Performance Bond and 7.3.7.4, 9.6.7, 9.10.3, 11.4 Payments, Progress 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3, 15.1.3 PAYMENTS AND COMPLETION 9 AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 7 Payments to Subcontractors 5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4, 9.6.7, 14.2.1.2 PCB 10.3.1 Performance Bond and Payment Bond 7.3.7.4, 9.6.7, 9.10.3, 11.4 Permits, Fees, Notices and Compliance with Laws 2.2.2, 3.7, 3.13, 7.3.7.4, 10.2.2 PERSONS AND PROPERTY, PROTECTION OF 10 Polychlorinated Biphenyl 10.3.1 Product Data, Definition of 3.12.2 Product Data and Samples, Shop Drawings 3.11, 3.12, 4.2.7 Progress and Completion 4.2.2, 8.2, 9.8, 9.9.1, 14.1.4, 15.1.3 Progress Payments 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3, 15.1.3 Project, Definition of 1.1.4 Project Representatives 4.2.10 Property Insurance 10.2.5, 11.3 PROTECTION OF PERSONS AND PROPERTY 10 Regulations and Laws 1.5, 3.2.3, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14, 15.2.8, 15.4 Rejection of Work 3.5, 4.2.6, 12.2.1 Releases and Waivers of Liens 9.10.2 Representations 3.2.1, 3.5, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.4.2, 9.5.1, 9.8.2, 9.10.1 Representatives 2.1.1, 3.1.1, 3.9, 4.1.1, 4.2.1, 4.2.2, 4.2.10, 5.1.1, 5.1.2, 13.2.1 Responsibility for Those Performing the Work 3.3.2, 3.18, 4.2.3, 5.3, 6.1.3, 6.2, 6.3, 9.5.1, 10 Retainage 9.3.1, 9.6.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3 Review of Contract Documents and Field Conditions by Contractor 3.2, 3.12.7, 6.1.3 Review of Contractor’s Submittals by Owner and Architect 3.10.1, 3.10.2, 3.11, 3.12, 4.2, 5.2, 6.1.3, 9.2, 9.8.2 Review of Shop Drawings, Product Data and Samples by Contractor 3.12 Rights and Remedies 1.1.2, 2.3, 2.4, 3.5, 3.7.4, 3.15.2, 4.2.6, 5.3, 5.4, 6.1, 6.3, 7.3.1, 8.3, 9.5.1, 9.7, 10.2.5, 10.3, 12.2.2, 12.2.4, 13.4, 14, 15.4 Royalties, Patents and Copyrights 3.17 Rules and Notices for Arbitration 15.4.1 Safety of Persons and Property 10.2, 10.4 Safety Precautions and Programs 3.3.1, 4.2.2, 4.2.7, 5.3, 10.1, 10.2, 10.4 Samples, Definition of 3.12.3 Samples, Shop Drawings, Product Data and 3.11, 3.12, 4.2.7 Samples at the Site, Documents and 3.11 Schedule of Values 9.2, 9.3.1 Schedules, Construction 3.10, 3.12.1, 3.12.2, 6.1.3, 15.1.5.2 Separate Contracts and Contractors 1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 6, 8.3.1, 12.1.2 Shop Drawings, Definition of 3.12.1 Shop Drawings, Product Data and Samples 3.11, 3.12, 4.2.7 Site, Use of 3.13, 6.1.1, 6.2.1 Site Inspections 3.2.2, 3.3.3, 3.7.1, 3.7.4, 4.2, 9.4.2, 9.10.1, 13.5 Site Visits, Architect’s 3.7.4, 4.2.2, 4.2.9, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5 Special Inspections and Testing 4.2.6, 12.2.1, 13.5 Specifications, Definition of 1.1.6 Specifications 1.1.1, 1.1.6, 1.2.2, 1.5, 3.11, 3.12.10, 3.17, 4.2.14 Statute of Limitations 13.7, 15.4.1.1 Stopping the Work 2.3, 9.7, 10.3, 14.1 Stored Materials 6.2.1, 9.3.2, 10.2.1.2, 10.2.4 Subcontractor, Definition of 5.1.1 SUBCONTRACTORS 5 Subcontractors, Work by 1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4, 9.3.1.2, 9.6.7 Subcontractual Relations 5.3, 5.4, 9.3.1.2, 9.6, 9.10, 10.2.1, 14.1, 14.2.1 AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 8 Submittals 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.7, 9.2, 9.3, 9.8, 9.9.1, 9.10.2, 9.10.3, 11.1.3 Submittal Schedule 3.10.2, 3.12.5, 4.2.7 Subrogation, Waivers of 6.1.1, 11.3.7 Substantial Completion 4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 12.2, 13.7 Substantial Completion, Definition of 9.8.1 Substitution of Subcontractors 5.2.3, 5.2.4 Substitution of Architect 4.1.3 Substitutions of Materials 3.4.2, 3.5, 7.3.8 Sub-subcontractor, Definition of 5.1.2 Subsurface Conditions 3.7.4 Successors and Assigns 13.2 Superintendent 3.9, 10.2.6 Supervision and Construction Procedures 1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 6.1.3, 6.2.4, 7.1.3, 7.3.7, 8.2, 8.3.1, 9.4.2, 10, 12, 14, 15.1.3 Surety 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2, 15.2.7 Surety, Consent of 9.10.2, 9.10.3 Surveys 2.2.3 Suspension by the Owner for Convenience 14.3 Suspension of the Work 5.4.2, 14.3 Suspension or Termination of the Contract 5.4.1.1, 14 Taxes 3.6, 3.8.2.1, 7.3.7.4 Termination by the Contractor 14.1, 15.1.6 Termination by the Owner for Cause 5.4.1.1, 14.2, 15.1.6 Termination by the Owner for Convenience 14.4 Termination of the Architect 4.1.3 Termination of the Contractor 14.2.2 TERMINATION OR SUSPENSION OF THE CONTRACT 14 Tests and Inspections 3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 10.3.2, 11.4.1, 12.2.1, 13.5 TIME 8 Time, Delays and Extensions of 3.2.4, 3.7.4, 5.2.3, 7.2.1, 7.3.1, 7.4, 8.3, 9.5.1, 9.7, 10.3.2, 10.4, 14.3.2, 15.1.5, 15.2.5 Time Limits 2.1.2, 2.2, 2.4, 3.2.2, 3.10, 3.11, 3.12.5, 3.15.1, 4.2, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 12.2, 13.5, 13.7, 14, 15.1.2, 15.4 Time Limits on Claims 3.7.4, 10.2.8, 13.7, 15.1.2 Title to Work 9.3.2, 9.3.3 Transmission of Data in Digital Form 1.6 UNCOVERING AND CORRECTION OF WORK 12 Uncovering of Work 12.1 Unforeseen Conditions, Concealed or Unknown 3.7.4, 8.3.1, 10.3 Unit Prices 7.3.3.2, 7.3.4 Use of Documents 1.1.1, 1.5, 2.2.5, 3.12.6, 5.3 Use of Site 3.13, 6.1.1, 6.2.1 Values, Schedule of 9.2, 9.3.1 Waiver of Claims by the Architect 13.4.2 Waiver of Claims by the Contractor 9.10.5, 13.4.2, 15.1.6 Waiver of Claims by the Owner 9.9.3, 9.10.3, 9.10.4, 12.2.2.1, 13.4.2, 14.2.4, 15.1.6 Waiver of Consequential Damages 14.2.4, 15.1.6 Waiver of Liens 9.10.2, 9.10.4 Waivers of Subrogation 6.1.1, 11.3.7 Warranty 3.5, 4.2.9, 9.3.3, 9.8.4, 9.9.1, 9.10.4, 12.2.2, 13.7 Weather Delays 15.1.5.2 Work, Definition of 1.1.3 Written Consent 1.5.2, 3.4.2, 3.7.4, 3.12.8, 3.14.2, 4.1.2, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2, 15.4.4.2 Written Interpretations 4.2.11, 4.2.12 AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 9 Written Notice 2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 12.2.2, 12.2.4, 13.3, 14, 15.4.1 Written Orders 1.1.1, 2.3, 3.9, 7, 8.2.2, 12.1, 12.2, 13.5.2, 14.3.1, 15.1.2 AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 10 ARTICLE 1 GENERAL PROVISIONS § 1.1 BASIC DEFINITIONS § 1.1.1 THE CONTRACT DOCUMENTS The Contract Documents are enumerated in the Agreement between the Owner and Contractor (hereinafter the Agreement) and consist of the Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect. Unless specifically enumerated in the Agreement, the Contract Documents do not include the advertisement or invitation to bid, Instructions to Bidders, sample forms, other information furnished by the Owner in anticipation of receivin g bids or proposals, the Contractor’s bid or proposal, or portions of Addenda relating to bidding requirements. § 1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Contractor and the Architect or the Architect’s consultants, (2) between the Owner and a Subcontractor or a Sub -subcontractor, (3) between the Owner and the Architect or the Architect’s consultants or (4) between any person s or entities other than the Owner and the Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect’s duties. § 1.1.3 THE 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 to fulfill the Contractor’s obligations. The Work may constitute the whole or a part of the Project. § 1.1.4 THE PROJECT The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the O wner and by separate contractors. § 1.1.5 THE DRAWINGS The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedul es and diagrams. § 1.1.6 THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. § 1.1.7 INSTRUMENTS OF SERVICE Instruments of Service are representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by the Architect and the Architect’s consultants under th eir respective professional services agreements. Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, and other similar materials. § 1.1.8 INITIAL DECISION MAKER The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in accordance with Section 15.2 and certify termination of the Agreement under Section 14.2.2. § 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS § 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 11 § 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. § 1.2.3 Unless otherwise stated in the Contract Documents, words that have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. § 1.3 CAPITALIZATION Terms capitalized in these General Conditions include those that are (1) specifically defined, (2) the t itles of numbered articles or (3) the titles of other documents published by the American Institute of Architects. § 1.4 INTERPRETATION In the interest of brevity the Contract Documents frequently omit modifying words such as “all” and “any” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. § 1.5 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE § 1.5.1 The Architect and the Architect’s consultants shall be deemed the authors and owners of their respective Instruments of Service, including the Drawings and Specifications, and will retain all common law, statutory and other reserved rights, including copyrights. The Contractor, Subcontractors, Sub -subcontractors, and material or equipment suppliers shall not own or claim a copyright in the Instruments of Service. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect’s or Architect’s consultants’ reserved rights. § 1.5.2 The Contractor, Subcontractors, Sub -subcontractors and material or equipment suppliers are authorized to use and reproduce the Instruments of Service provided to them solely and exclusively for execution of the Work. All copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of Service. The Contractor, Subcontractors, Sub -subcontractors, and material or equipment suppliers may not use the Instruments of Service on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner, Architect and the Architect’s consultants. § 1.6 TRANSMISSION OF DATA IN DIGITAL FORM If the parties intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions, unless otherwise already provided in the Agreement or the Contract Documents. ARTICLE 2 OWNER § 2.1 GENERAL § 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner’s approval or authorization. Except as otherwise provided in Section 4.2.1, the Architect does not have such authority. The term “Owner” means the Owner or the Owner’s authorized representative. § 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic’s lien rights. Such information shall include a correct state ment of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner’s interest therein. § 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER § 2.2.1 Prior to commencement of the Work, the Contractor may request in writing that the Owner provide reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract. Thereafter, the Contractor may only request such evidence if (1) the Owner fails to m ake payments to the Contractor as the Contract Documents require; (2) a change in the Work materially changes the Contract Sum; or (3) the Contractor identifies in writing a reasonable concern regarding the Owner’s ability to make payment when due. The Owner shall furnish such evidence as a condition precedent to commencement or continuation of the Work or AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 12 the portion of the Work affected by a material change. After the Owner furnishes the evidence, the Owner shall not materially vary such financial arrange ments without prior notice to the Contractor. § 2.2.2 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary appro vals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. § 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations an d utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of t he Work. § 2.2.4 The Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or services under the Owner’s control and relevant to the Contractor’s performance of the Work with reasonable promptness after receiving the Contractor’s written request for such information or services. § 2.2.5 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one copy of the Contract Documents for purposes of making reproductions pursuant to Section 1.5.2. § 2.3 OWNER’S RIGHT TO STOP THE WORK If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3. § 2.4 OWNER’S RIGHT TO CARRY OUT THE WORK If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a ten-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner’s expenses and compensation for the Architect’s additional services made necessary by such default, neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contracto r shall pay the difference to the Owner. ARTICLE 3 CONTRACTOR § 3.1 GENERAL § 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Contractor shall be lawfully licensed, if required in the jurisdiction where the Project is located. The Contractor shall designate in writing a representative who shall have express authority to bind the Contractor with respect to all matters under this Contract. Th e term “Contractor” means the Contractor or the Contractor’s authorized representative. § 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents. § 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect’s administration of the Contract, or by tests, inspections or approvals required or performed by persons or entities other than the Contractor. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 13 § 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 3.2.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, bec ome generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. § 3.2.2 Because the Contract Documents are complementary, the Contractor shall, before s tarting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall take field measurements of any existing conditions related to that portion of the Work, and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the Architect any errors, inconsistencies or omissions discovered by or made known to the Contractor as a request for information in such form as the Architect may require. It is recognized that the Contractor’s review is made in the Contractor’s capacity as a contractor and not as a licensed design professional, unless otherwise specifically provided in the Contract Documents. § 3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Contractor shall promptly report to the Architect any nonconformity discovered by or made known to the Contractor as a request for information in such form as the Architect may require. § 3.2.4 If the Contractor believes that additional cost or time is involved because of clarifications or instructions the Architect issues in response to the Contractor’s notices or requests for information pursuant to Sections 3.2.2 or 3.2.3, the Contractor shall make Claims as provided in Article 15. If the Contractor fails to perform the obligations of Sections 3.2.2 or 3.2.3, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. If the Contractor performs those obligations, the Contractor shall not be liable to the Owner or Architect for damage s resulting from errors, inconsistencies or omissions in the Contract Documents, for differences between field measurements or conditions and the Contract Documents, or for nonconformities of the Contract Documents to applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities. § 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES § 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely respon sible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for any loss or damage arising solely from those Owner -required means, methods, techniques, sequences or procedures. § 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors. § 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. § 3.4 LABOR AND MATERIALS § 3.4.1 Unless otherwise provided in the Contract Documents, the Cont ractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 14 facilities and services necessary for proper execution and completion of the Work, whether temporar y or permanent and whether or not incorporated or to be incorporated in the Work. § 3.4.2 Except in the case of minor changes in the Work authorized by the Architect in accordance with Sections 3.12.8 or 7.4, the Contractor may make substitutions only wit h the consent of the Owner, after evaluation by the Architect and in accordance with a Change Order or Construction Change Directive. § 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not properly skilled in tasks assigned to them. § 3.5 WARRANTY The Contractor warrants to the Owner and Architect that materials and equipment furnished under th e Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit. Work, materials, or equipment not conforming to these requirements may be considered defective. The Contractor’s warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and qua lity of materials and equipment. § 3.6 TAXES The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor that are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. § 3.7 PERMITS, FEES, NOTICES AND COMPLIANCE WITH LAWS § 3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit as well as for other permits, fees, license s, and inspections by government agencies necessary for proper execution and completion of the Work that are customarily secured after execution of the Contract and legally required at the time bids are received or negotiations concluded. § 3.7.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work. § 3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. § 3.7.4 Concealed or Unknown Conditions. If the Contractor encounters conditions at the site that are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner and the Architect before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Architect will promptly investigate such conditions and, if the Architect determines that they differ materially and ca use an increase or decrease in the Contractor’s cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Architect determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall promptly notify the Owner and Contractor in writing, stating the reasons. If either party disputes the Architect’s determination or recommendation, that party may proceed as provided in Article 15. § 3.7.5 If, in the course of the Work, the Contractor encounters human remains or recognizes the existence of burial markers, archaeological sites or wetlands not indicated in the Contract Documents, the Contractor shall immediately suspend any operations that would affect them and shall notify the Owner and Architect. Upon receipt of such notice, the Owner shall promptly take any action necessary to obtain governmental authorization required to resume AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 15 the operations. The Contractor shall continue to suspend such operations until otherwise instructed by the Owner but shall continue with all other operations that do not affect those remains or features. Requests for adjustments in the Contract Sum and Contract Time arising from the existence of such remains or features may be made as provided in Article 15. § 3.8 ALLOWANCES § 3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. § 3.8.2 Unless otherwise provided in the Contract Documents, .1 Allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Contractor’s costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; and .3 Whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section 3.8.2.1 and (2) changes in Contractor’s costs under Section 3.8.2.2. § 3.8.3 Materials and equipment under an allowance shall be selected by the Owner with reasonable promptness. § 3.9 SUPERINTENDENT § 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. § 3.9.2 The Contractor, as soon as practicable after a ward of the Contract, shall furnish in writing to the Owner through the Architect the name and qualifications of a proposed superintendent. The Architect may reply within 14 days to the Contractor in writing stating (1) whether the Owner or the Architect h as reasonable objection to the proposed superintendent or (2) that the Architect requires additional time to review. Failure of the Architect to reply within the 14 day period shall constitute notice of no reasonable objection. § 3.9.3 The Contractor shall not employ a proposed superintendent to whom the Owner or Architect has made reasonable and timely objection. The Contractor shall not change the superintendent without the Owner’s consent, which shall not unreasonably be withheld or delayed. § 3.10 CONTRACTOR’S CONSTRUCTION SCHEDULES § 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner’s and Architect’s information a Contractor’s construction schedule for the Work. The schedule shall not exceed ti me limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. § 3.10.2 The Contractor shall prepare a submittal schedule, promptly after being awarded the Contract and thereafter as necessary to maintain a current submittal schedule, and shall submit the schedule(s) for the Architect’s approval. The Architect’s approval shall not unreasonably be delayed or withheld. The submittal schedule shall (1) be coordinated with the Contractor’s construction schedule, and (2) allow the Architect reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals. § 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 16 § 3.11 DOCUMENTS AND SAMPLES AT THE SITE The Contractor shall maintain at the site for the Owner one copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to indicate field changes and selections made during construction, and one copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work as a record of the Work as constructed. § 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES § 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub -subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. § 3.12.2 Product Data are illustrations, standard schedules, performance ch arts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. § 3.12.3 Samples are physical examples that illustrate materials, equipment or workmanship and es tablish standards by which the Work will be judged. § 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their purpose is to demonstrate the way by which the Contractor proposes to conform to the information giv en and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals. Review by the Architect is subject to the limitations of Section 4.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals that are not required by the Contract Documents may be returned by the Architect without action. § 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents in accordance with the submittal schedule approved by the Architect or, in the absence of an approved submittal schedule, with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. § 3.12.6 By submitting Shop Drawings, Product Data, Samples and similar submitt als, the Contractor represents to the Owner and Architect that the Contractor has (1) reviewed and approved them, (2) determined and verified materials, field measurements and field construction criteria related thereto, or will do so and (3) checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. § 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. § 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect’s approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of res ponsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Architect’s approval thereof. § 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice, the Architect’s approval of a resubmission shall not apply to such revisions. § 3.12.10 The Contractor shall not be required to provide professional services that constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor’s responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 17 required to provide professional services in violation of applicable la w. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and des ign criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional’s written approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications and approvals performed or provided by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Section 3.12.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking f or conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance and design criteria specified in the Contract Documents. § 3.13 USE OF SITE The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. § 3.14 CUTTING AND PATCHING § 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. All areas requiring cutting, fitting and patching sh all be restored to the condition existing prior to the cutting, fitting and patching, unless otherwise required by the Contract Documents. § 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor’s consent to cutting or otherwise altering the Work. § 3.15 CLEANING UP § 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove waste materials, rubbish, the Contractor’s tools, construction equipment, machinery and surplus materials from and about the Project. § 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and Owner shall be entitled to reimbursement from the Contractor. § 3.16 ACCESS TO WORK The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever located. § 3.17 ROYALTIES, PATENTS AND COPYRIGHTS The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents, or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 18 § 3.18 INDEMNIFICATION § 3.18.1 To the fullest extent permitted by law the Contractor shall indemnify and hold harmless the Owner, Architect, Architect’s consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, 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), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in this Section 3.18. § 3.18.2 In claims against any person or entity indemnified under this Section 3.18 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 under Section 3.18.1 shall not 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’ compensation acts, disability benefit acts or other e mployee benefit acts. ARTICLE 4 ARCHITECT § 4.1 GENERAL § 4.1.1 The Owner shall retain an architect lawfully licensed to practice architecture or an entity lawfully practicing architecture in the jurisdiction where the Project is located. That person or entity is identified as the Architect in the Agreement and is referred to throughout the Contract Documents as if singular in number. § 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written conse nt of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld. § 4.1.3 If the employment of the Architect is terminated, the Owner shall employ a successor architect as to whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the Architect. § 4.2 ADMINISTRATION OF THE CONTRACT § 4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents and will be an Owner’s representative during construction until the date the Architect issues the final Certificate for Payment. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents. § 4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction, or as otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine in general if the Work observed is being performed in a man ner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Archit ect will not have control over, charge of, or responsibility for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor’s rights and responsibilities under the Contract Documents, except as provided in Section 3.3.1. § 4.2.3 On the basis of the site visits, the Architect will keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and deficiencies observed in the Work. The Architect will not be responsible for the Contractor ’s failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 19 § 4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect’s consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the Owner. § 4.2.5 Based on the Architect’s evaluations of the Contractor’s Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. § 4.2.6 The Architect has authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect will have authority to require inspection or testing of the Work in accordance with Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other pe rsons or entities performing portions of the Work. § 4.2.7 The Architect will review and approve, or take other appropriate action upon, the Contractor’s submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of check ing for conformance with information given and the design concept expressed in the Contract Documents. The Architect’s action will be taken in accordance with the submittal schedule approved by the Architect or, in the absence of an approved submittal schedule, with reasonable promptness while allowing sufficient time in the Architect’s professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect’s review of the Contra ctor’s submittals shall not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Architect’s review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any constructio n means, methods, techniques, sequences or procedures. The Architect’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. § 4.2.8 The Architect will prepare Change Orders and Construction Change Direc tives, and may authorize minor changes in the Work as provided in Section 7.4. The Architect will investigate and make determinations and recommendations regarding concealed and unknown conditions as provided in Section 3.7.4. § 4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion pursuant to Section 9.8; receive and forward to the Owner, for the Owner’s review and records, writte n warranties and related documents required by the Contract and assembled by the Contractor pursuant to Section 9.10; and issue a final Certificate for Payment pursuant to Section 9.10. § 4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect’s responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. § 4.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the Owner or Contractor. The Architect’s response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. § 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of, and reasonably inferable from, the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions rendered in good faith. § 4.2.13 The Architect’s decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 20 § 4.2.14 The Architect will review and respond to requests for information about the Contract Documents. The Architect’s response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If appropriate, the Architect will prepare and issue supplemental Drawings and Specifications in response to the requests for information. ARTICLE 5 SUBCONTRACTORS § 5.1 DEFINITIONS § 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term “Subcontractor” is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term “Subcontractor” does not include a separate contractor or subcontractors of a separate contractor. § 5.1.2 A Sub-subcontractor is a person or entity who has a direc t or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term “Sub -subcontractor” is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor. § 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK § 5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect may reply w ithin 14 days to the Contractor in writing stating (1) whether the Owner or the Architect has reasonable objection to any such proposed person or entity or (2) that the Architect requires additional time for review. Failure of the Owner or Architect to rep ly within the 14-day period shall constitute notice of no reasonable objection. § 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. § 5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor’s Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. § 5.2.4 The Contractor shall not substitute a Subcontractor, person or entity previously selected if the Owner or Architect makes reasonable objection to such substitution. § 5.3 SUBCONTRACTUAL RELATIONS By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor’s Work, which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall preserve and protect t he rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, up on written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement that may AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 21 be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. § 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS § 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner, provided that .1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to Section 14.2 and only for those subcontract agreements that the Owner accepts by notifying the Subcontractor and Contractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor’s rights and obligations under the subcontract. § 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor’s compensation shall be equitably adjusted for increases in cost resulting from the suspension. § 5.4.3 Upon such assignment to the Owner under this Section 5.4, the Owner may further assign the subcontract to a successor contractor or other entity. If the Owner assigns the subcontract to a successor contractor or other entity, the Owner shall nevertheless remain legally responsible for all of the successor contractor’s obligations under the subcontract. ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 6.1 OWNER’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § 6.1.1 The Owner reserves the right to perform construction or operatio ns related to the Project with the Owner’s own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to t hese including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such Claim as provided in Article 15. § 6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term “Contractor” in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. § 6.1.3 The Owner shall provide for coordination of the activities of the Owner’s own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. § 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner’s own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights that apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12. § 6.2 MUTUAL RESPONSIBILITY § 6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor’s construction and operations with theirs as required by the Contract Documents. § 6.2.2 If part of the Contractor’s Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 22 the Owner’s or separate contractor’s completed or partially completed construction is fit and proper to receive the Contractor’s Work, except as to defects not then reasonably discoverable. § 6.2.3 The Contractor shall reimburse the Owner for costs the Owner incurs that are payable to a separate contractor because of the Contractor’s delays, improperly timed activities or defective construction. The Owner shall be responsible to the Contractor for costs the Contractor incurs because of a separate contractor’s delays, improperly timed activities, damage to the Work or defective construction. § 6.2.4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or pa rtially completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5. § 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Section 3.14. § 6.3 OWNER’S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Architect will allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK § 7.1 GENERAL § 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without inva lidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. § 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. § 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Wo rk. § 7.2 CHANGE ORDERS § 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect stating their agreement upon all of the following: .1 The change in the Work; .2 The amount of the adjustment, if any, in the Contract Sum; and .3 The extent of the adjustment, if any, in the Contract Time. § 7.3 CONSTRUCTION CHANGE DIRECTIVES § 7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. § 7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. § 7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: .1 Mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; .2 Unit prices stated in the Contract Documents or subsequently agreed upon; .3 Cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 23 .4 As provided in Section 7.3.7. § 7.3.4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted. § 7.3.5 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor’s agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. § 7.3.6 A Construction Change Directive signed by the Contractor indicates the Contractor’s agreement therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be record ed as a Change Order. § 7.3.7 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the Architect shall determine the method and the adjustment on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, an amount for overhead and profit as set forth in the Agreement, or if no such amount is set forth in the Agreement, a reasonable amount. In such case, and also under Section 7.3.3.3, the Contractor shall keep and present, in such form as the Architect may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Section 7.3.7 shall be limited to the following: .1 Costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers’ compensation insurance; .2 Costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; .3 Rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; .4 Costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and .5 Additional costs of supervision and field office personnel directly attributable to the change. § 7.3.8 The amount of credit to be allowed by the Contractor to the Owner for a deletio n or change that results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit sh all be figured on the basis of net increase, if any, with respect to that change. § 7.3.9 Pending final determination of the total cost of a Construction Change Directive to the Owner, the Contractor may request payment for Work completed under the Constr uction Change Directive in Applications for Payment. The Architect will make an interim determination for purposes of monthly certification for payment for those costs and certify for payment the amount that the Architect determines, in the Architect’s pro fessional judgment, to be reasonably justified. The Architect’s interim determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of either party to disagree and assert a Claim in accordance with Article 15. § 7.3.10 When the Owner and Contractor agree with a determination made by the Architect concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and the Architect will prepare a Change Order. Change Orders may be issued for all or any part of a Construction Change Directive. § 7.4 MINOR CHANGES IN THE WORK The Architect has authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes will be effected by written order signed by the Architect and shall be binding on the Owner and Contractor. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 24 ARTICLE 8 TIME § 8.1 DEFINITIONS § 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. § 8.1.2 The date of commencement of the Work is the date established in the Agreement. § 8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Section 9.8. § 8.1.4 The term “day” as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. § 8.2 PROGRESS AND COMPLETION § 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreem ent the Contractor confirms that the Contract Time is a reasonable period for performing the Work. § 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance. § 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. § 8.3 DELAYS AND EXTENSIONS OF TIME § 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner; or by changes ordered in the Work; or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor’s control; or by delay authorized by the Owner pending mediation and arbitration; or by other causes that the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine. § 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Article 15. § 8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. ARTICLE 9 PAYMENTS AND COMPLETION § 9.1 CONTRACT SUM The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. § 9.2 SCHEDULE OF VALUES Where the Contract is based on a stipulated sum or Guaranteed Maximum Price, the Contractor shall submit to the Architect, before the first Application for Payment, a schedule of values allocating the entire Contract Sum to the various portions of the Work and prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor’s Applications for Payment. § 9.3 APPLICATIONS FOR PAYMENT § 9.3.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the Architect an itemized Application for Payment prepared in accordance with the schedule of values, if required under Section 9.2, for completed portions of the Work. Such application shall be notarized, if required, and supported by such data substantiating the Contractor’s right to payment as the Owner or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and shall reflect retainage if provided for in the Contract Documents. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 25 § 9.3.1.1 As provided in Section 7.3.9, such applications may include requests for payment on account of changes in the Work that have been properly authorized by Construction Change Directives, or by interim determinations of the Architect, but not yet included in Change Orders. § 9.3.1.2 Applications for Payment shall not include requests for payment for portions of the Work for which the Contractor does not intend to pay a Subcontractor or material supplier, unless such Work has been performed by others whom the Contractor intends to pay. § 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advan ce by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner’s title to such materials and equipment or otherwise protect the Owner’s interest, and shall include the costs of applicable insurance, storage and transportation to the site for such mate rials and equipment stored off the site. § 9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Appli cation for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor’s knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. § 9.4 CERTIFICATES FOR PAYMENT § 9.4.1 The Architect will, within seven days after receipt of the Contractor’s Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contracto r and Owner in writing of the Architect’s reasons for withholding certification in whole or in part as provided in Section 9.5.1. § 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architect’s evaluation of the Work and the data comprising the Application for Payment, that, to the best of the Architect’s knowledge, information and belief, the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviation s from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certifi ed. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on - site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniq ues, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor’s right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 9.5 DECISIONS TO WITHHOLD CERTIFICATION § 9.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect’s opinion the representations to the Owner required by Section 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Section 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect’s opinion to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Section 3.3.2, because of .1 defective Work not remedied; .2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 26 .3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; .4 reasonable evidence that the Work cannot be completed for the u npaid balance of the Contract Sum; .5 damage to the Owner or a separate contractor; .6 reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .7 repeated failure to carry out the Work in accordance with the Contract Documents. § 9.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. § 9.5.3 If the Architect withholds certification for payment under Section 9.5.1.3, the Owner may, at its sole option, issue joint checks to the Contractor and to any Subcontractor or material or equipment suppliers to whom the Contractor failed to make payment for Work properly performed or material or equipment suitably delivered. If the Owner makes payments by joint check, the Owner shall notify the Architect and the Architect will reflect such payment on the next Certificate for Payment. § 9.6 PROGRESS PAYMENTS § 9.6.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. § 9.6.2 The Contractor shall pay each Subcontractor no later than seven days after receipt of payment from the Owner the amount to which the Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of the Subcontractor’s portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub -subcontractors in a similar manner. § 9.6.3 The Architect will, on request, furnish to a Subcontrac tor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect and Owner on account of portions of the Work done by such Subcontractor. § 9.6.4 The Owner has the right to request written evidence from the Contractor that the Contractor has properly paid Subcontractors and material and equipment suppliers amounts paid by the Owner to the Contractor for subcontracted Work. If the Contractor fails to furnish such evidence within seven days, the Owner shall have the right to contact Subcontractors to ascertain whether they have been properly paid. Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor, except as may otherwise be required by law. § 9.6.5 Contractor payments to material and equipment suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6.3 and 9.6.4. § 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. § 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under contract with the Contractor for which payment was made by the Owner. Nothing contained herein shall require money to be placed in a separate account and not commingled with money of the Contractor, shall create any fiduciary liability or tort liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this pro vision. § 9.7 FAILURE OF PAYMENT If the Architect does not issue a Certificate for Payment, through no fault of the Contractor, within seven days after receipt of the Contractor’s Application for Payment, or if the Owner does not pay the Contractor within seven days after the date established in the Contract Documents the amount certified by the Architect or awarded by binding dispute resolution, then the Contractor may, upon seven additional days’ written notice to the Owner and Architect, AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 27 stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor’s reasonable costs of shut - down, delay and start-up, plus interest as provided for in the Contract Documents. § 9.8 SUBSTANTIAL COMPLETION § 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Own er can occupy or utilize the Work for its intended use. § 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Archit ect a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. § 9.8.3 Upon receipt of the Contractor’s list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect’s inspection discloses any item, whether or not included on the Contractor’s list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Co mpletion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. § 9.8.4 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, util ities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. § 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. § 9.9 PARTIAL OCCUPANCY OR USE § 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Section 11.3.1.5 and authorized by public authorities having jurisdiction over the Project. Such partial occupancy or use may commence whether or not the po rtion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have ag reed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the Architect as provided under Section 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreeme nt is reached, by decision of the Architect. § 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. § 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. § 9.10 FINAL COMPLETION AND FINAL PAYMENT § 9.10.1 Upon receipt of the Contractor’s written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when the AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 28 Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect’s knowledge, information and belief, and on the basis of the Architect’s on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable. The Architect’s final Certificate for Payment will constitute a further representation that conditions listed in Section 9.10.2 as precedent to the Contractor’s being entitled to final payment have been fulfilled. § 9.10.2 Neither final payment nor any remaining retained percentage shall become due until t he Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner’s property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days’ prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and i n such form as may be designated by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsat isfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys’ fees. § 9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the Owner shall, upon application by the Contractor and certification by the Archit ect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. § 9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from .1 liens, Claims, security interests or encumbrances arising out of the Contract and unsettled; .2 failure of the Work to comply with the requirements of the Contract Documents; or .3 terms of special warranties required by the Contract Documents. § 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY § 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. § 10.2 SAFETY OF PERSONS AND PROPERTY § 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to .1 employees on the Work and other persons who may be affected thereby ; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor’s Subcontractors or Sub - subcontractors; and .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 29 § 10.2.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. § 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. § 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. § 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to p roperty referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub -subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them m ay be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor’s obligations under Section 3.18. § 10.2.6 The Contractor shall designate a responsible member of the Contractor’s organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor’s superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. § 10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause damage or create an unsafe condition. § 10.2.8 INJURY OR DAMAGE TO PERSON OR PROPERTY If either party suffers injury or damage to person or property because of an act or omi ssion of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. § 10.3 HAZARDOUS MATERIALS § 10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract Documents regarding hazardous materials. If the Contractor encounters a hazardous material or substance not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and A rchitect in writing. § 10.3.2 Upon receipt of the Contractor’s written notice, the Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to cause it to be rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Contractor and the Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contrac tor and the Architect have no reasonable objection. When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner and Contractor. By Change Order, the Contract Time shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor’s reasonable additional costs of shut-down, delay and start-up. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 30 § 10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contracto r, Subcontractors, Architect, Architect’s consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work in t he affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10.3.1 and has not been rendered harmless, 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), except to the extent that such damage, loss or expense is due to the fault or negligence of the party seeking indemnity. § 10.3.4 The Owner shall not be responsible under this Section 10.3 for materials or substances the Contractor brings to the site unless such materials or substances are required by the Contract Documents. The Owner shall be responsible for materials or substances required by the Contra ct Documents, except to the extent of the Contractor’s fault or negligence in the use and handling of such materials or substances. § 10.3.5 The Contractor shall indemnify the Owner for the cost and expense the Owner incurs (1) for remediation of a material or substance the Contractor brings to the site and negligently handles, or (2) where the Contractor fails to perform its obligations under Section 10.3.1, except to the extent that the cost and expense are due to the Owner’s fault or negligence. § 10.3.6 If, without negligence on the part of the Contractor, the Contractor is held liable by a government agency for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred. § 10.4 EMERGENCIES In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor’s discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and Article 7. ARTICLE 11 INSURANCE AND BONDS § 11.1 CONTRACTOR’S LIABILITY INSURANCE § 11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor’s operations and completed operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of t hem, or by anyone for whose acts any of them may be liable: .1 Claims under workers’ compensation, disability benefit and other similar employee benefit acts that are applicable to the Work to be performed; .2 Claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor’s employees; .3 Claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor’s employees; .4 Claims for damages insured by usual personal injury liability coverage; .5 Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; .6 Claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; .7 Claims for bodily injury or property damage arising out of completed operations; and .8 Claims involving contractual liability insurance applicable to the Contractor’s obligations u nder Section 3.18. § 11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from the date of commencement of the Work until the date of final payment and termination of any coverage required to be maintained after final payment, and, with respect to the Contractor’s co mpleted operations coverage, until the expiration of the period for correction AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 31 of Work or for such other period for maintenance of completed operations coverage as specified in the Contract Documents. § 11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work and thereafter upon renewal or replacement of each required policy of insurance. These certificates and the insurance policies required by this Section 11.1 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days’ prior written notice has been given to the Owner. An additional certificate evidencing continuation of liability coverage, including coverage for compl eted operations, shall be submitted with the final Application for Payment as required by Section 9.10.2 and thereafter upon renewal or replacement of such coverage until the expiration of the time required by Section 11.1.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or both, shall be furnished by the Contractor with reasonable promptness. § 11.1.4 The Contractor shall cause the commercial liability coverage required by the Contrac t Documents to include (1) the Owner, the Architect and the Architect’s consultants as additional insureds for claims caused in whole or in part by the Contractor’s negligent acts or omissions during the Contractor’s operations; and (2) the Owner as an additional insured for claims caused in whole or in part by the Contractor’s negligent acts or omissions during the Contractor’s completed operations. § 11.2 OWNER’S LIABILITY INSURANCE The Owner shall be responsible for purchasing and maintaining the Owner’s usual liability insurance. § 11.3 PROPERTY INSURANCE § 11.3.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property in surance written on a builder’s risk “all-risk” or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract Modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Section 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section 11.3 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub - subcontractors in the Project. § 11.3.1.1 Property insurance shall be on an “all -risk” or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal i ncluding demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Architect’s and Contractor’s services and expenses required as a result of such insured loss. § 11.3.1.2 If the Owner does not intend to purchase such property insurance required by the Contract and with all of the coverages in the amount described above, the Owner shall so inform the Contractor in writing prior to commencement of the Work. The Contractor ma y then effect insurance that will protect the interests of the Contractor, Subcontractors and Sub-subcontractors in the Work, and by appropriate Change Order the cost thereof shall be charged to the Owner. If the Contractor is damaged by the failure or neg lect of the Owner to purchase or maintain insurance as described above, without so notifying the Contractor in writing, then the Owner shall bear all reasonable costs properly attributable thereto. § 11.3.1.3 If the property insurance requires deductibles, the Owner shall pay costs not covered because of such deductibles. § 11.3.1.4 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit. § 11.3.1.5 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 32 otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. § 11.3.2 BOILER AND MACHINERY INSURANCE The Owner shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Owne r; this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub -subcontractors in the Work, and the Owner and Contractor shall be named insureds. § 11.3.3 LOSS OF USE INSURANCE The Owner, at the Owner’s option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner’s property due to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of the Owner’s property, including conse quential losses due to fire or other hazards however caused. § 11.3.4 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy, the Owner shall, if possible, include such insurance, and the cost thereof shall be charged to the Contractor by appropriate Change Order. § 11.3.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights in accordance with the terms of Section 11.3.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. § 11.3.6 Before an exposure to loss may occur, the Owner shall file with the Contractor a copy of each policy that includes insurance coverages required by this Section 11.3. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days’ prior written notice has been given to the Contractor. § 11.3.7 WAIVERS OF SUBROGATION The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub - subcontractors, agents and employees, each of the other, and (2) the Architect, A rchitect’s consultants, separate contractors described in Article 6, if any, and any of their subcontractors, sub -subcontractors, agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section 11.3 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of the Architect, Architect’s consultants, separate contractors described in Article 6, if any, and the subcontractors, sub - subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. § 11.3.8 A loss insured under the Owner’s property insurance shall b e adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section 11.3.10. The Contractor shall pay Subcontractors thei r just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub -subcontractors in similar manner. § 11.3.9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured loss, give bond for proper performance of the Owner’s duties. The cost of required bonds shall be charged against proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received, which the AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 33 Owner shall distribute in accordance with such agreement as the parties in interest may reach, or as determined in accordance with the method of binding dispute resolution selected in the Agreement between the Owner and Contractor. If after such loss no other special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged property shall be performed by the Contractor after notification of a Change in the Work in accordance with Article 7. § 11.3.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the Owner’s exer cise of this power; if such objection is made, the dispute shall be resolved in the manner selected by the Owner and Contractor as the method of binding dispute resolution in the Agreement. If the Owner and Contractor have selected arbitration as the metho d of binding dispute resolution, the Owner as fiduciary shall make settlement with insurers or, in the case of a dispute over distribution of insurance proceeds, in accordance with the directions of the arbitrators. § 11.4 PERFORMANCE BOND AND PAYMENT BOND § 11.4.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specif ically required in the Contract Documents on the date of execution of the Contract. § 11.4.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contract or shall promptly furnish a copy of the bonds or shall authorize a copy to be furnished. ARTICLE 12 UNCOVERING AND CORRECTION OF WORK § 12.1 UNCOVERING OF WORK § 12.1.1 If a portion of the Work is covered contrary to the Architect’s request or to requir ements specifically expressed in the Contract Documents, it must, if requested in writing by the Architect, be uncovered for the Architect’s examination and be replaced at the Contractor’s expense without change in the Contract Time. § 12.1.2 If a portion of the Work has been covered that the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner’s expense. If such Work is not in accordance with the Contract Documents, such costs and the cost of correction shall be at the Contractor’s expense unless th e condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. § 12.2 CORRECTION OF WORK § 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION The Contractor shall promptly correct Work reje cted by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including ad ditional testing and inspections, the cost of uncovering and replacement, and compensation for the Architect’s services and expenses made necessary thereby, shall be at the Contractor’s expense. § 12.2.2 AFTER SUBSTANTIAL COMPLETION § 12.2.2.1 In addition to the Contractor’s obligations under Section 3.5, if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Section 9.9.1, or by terms of an a pplicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do s o unless the Owner has previously given the Contractor a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition. During the one -year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Section 2.4. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 34 § 12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual completion of that portion of the Work. § 12.2.2.3 The one-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Section 12.2. § 12.2.3 The Contractor shall remove from the site portions of the Work that are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner . § 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor’s correction or removal of Work that is not in accordance with the requirements of the Contract Documents. § 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations the Contractor has under the Contract Documents. Establishment of t he one-year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor’s liability with respect to the Contractor’s obligations other than specifically to correct the Work. § 12.3 ACCEPTANCE OF NONCONFORMING WORK If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS § 13.1 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located except that, if the parties have selected arbitration as the method of binding dispute resolution, the Federal Arbitration Act shall govern Section 15.4. § 13.2 SUCCESSORS AND ASSIGNS § 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Section 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. § 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to a lender provi ding construction financing for the Project, if the lender assumes the Owner’s rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment. § 13.3 WRITTEN NOTICE Written notice shall be deemed to have been duly served if delivered in person to the individual, to a member of the firm or entity, or to an officer of the corporation for which it was intended; or if delivered at, or sent by registered or certified mail or by courier service providing proof of delivery to, the last business address known to the party giving notice. § 13.4 RIGHTS AND REMEDIES § 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. § 13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach there under, except as may be specifically agreed in writing. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 35 § 13.5 TESTS AND INSPECTIONS § 13.5.1 Tests, inspections and approvals of portions of the Work shall be made as required by the Contract Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of public authorities. Unless otherwise provided, the Contractor shall make arrangements for such test s, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so that the Architect may be present for such procedures. The Owner shall bear costs of (1) tests, inspections or approvals that do not become requirements until after bids are received or negotiations concluded, and (2) tests, inspections or approvals where building codes or applicable laws or regulations prohibit the Owner from delegating their cost to the Contractor. § 13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section 13.5.1, the Architect will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional t esting, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Section 13.5.3, shall be at the Owner’s expense. § 13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure of the portions of the Work to comply with requirements established by th e Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect’s services and expenses shall be at the Contractor’s expense. § 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect. § 13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. § 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. § 13.6 INTEREST Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such rate as the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. § 13.7 TIME LIMITS ON CLAIMS The Owner and Contractor shall commence all claims and causes of action, whether in contract, tort, breach of warranty or otherwise, against the other arising out of or related to the Contract in accordance with the requirements of the final dispute resolution method selected in the Agreement within the time period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Contractor waive all claims and causes of action not commenced in accordance with this Section 13.7. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT § 14.1 TERMINATION BY THE CONTRACTOR § 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub -subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: .1 Issuance of an order of a court or other public authority having jurisdiction that requires all Work to be stopped; .2 An act of government, such as a declaration of national emergency that requires all Work to be stopped; AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 36 .3 Because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as pr ovided in Section 9.4.1, or because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents; or .4 The Owner has failed to furnish to the Contractor promptly, upon the Contractor’s request, reasonable evidence as required by Section 2.2.1. § 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions o f the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as described in Section 14.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365 -day period, whichever is less. § 14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days’ written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment for Work executed, including reasonable overhead and profit, costs incurred by reason of such termination, and damages. § 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has repeatedly failed to fulfill the Owner’s obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days’ written notice to the Owner and the Architect, terminate the Contract and recover from the Owner as provided in Section 14.1.3. § 14.2 TERMINATION BY THE OWNER FOR CAUSE § 14.2.1 The Owner may terminate the Contract if the Contractor .1 repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; .3 repeatedly disregards applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of a public authority; or .4 otherwise is guilty of substantial breach of a provision of the Contract Documents. § 14.2.2 When any of the above reasons exist, the Owner, upon certification by the Initial Decision Maker that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor’s surety, if any, seven days’ written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: .1 Exclude the Contractor from the site and take possession of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; .2 Accept assignment of subcontracts pursuant to Section 5.4; and .3 Finish the Work by whatever reasonable method the Owner may deem expedient. Upon written request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. § 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect’s services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Initial Decision Maker, upon application, and this obligation for payment shall survive termination of the Contract. § 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE § 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 37 § 14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section 14.3.1. Adjustment of the Contract Sum shall include profit. No adjustment shall be made to the extent .1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or .2 that an equitable adjustment is made or denied under another provision of the Contract. § 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE § 14.4.1 The Owner may, at any time, terminate the Contract for the Owner’s convenience and without cause. § 14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner’s convenience, the Contractor shall .1 cease operations as directed by the Owner in the notice; .2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and .3 except for Work directed to be performed prior to the effective date of t ermination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. § 14.4.3 In case of such termination for the Owner’s convenience, the Contractor shall be entitled to rece ive payment for Work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed. ARTICLE 15 CLAIMS AND DISPUTES § 15.1 CLAIMS § 15.1.1 DEFINITION A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or other relief with respect to the terms of the Contract. The term “Claim” also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. The responsibility to substantiate Claims shall rest with the party making the Claim. § 15.1.2 NOTICE OF CLAIMS Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the Initial Decision Maker with a copy sent to the Architect, if the Architect is not serving as the Initial Decision Maker. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. § 15.1.3 CONTINUING CONTRACT PERFORMANCE Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section 9.7 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. The Architect will prepare Change Orders and issue Certificates for Payment in accordance with the decisions of the Initial Decision Maker. § 15.1.4 CLAIMS FOR ADDITIONAL COST If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10.4. § 15.1.5 CLAIMS FOR ADDITIONAL TIME § 15.1.5.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor’s Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary. § 15.1.5.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 38 § 15.1.6 CLAIMS FOR CONSEQUENTIAL DAMAGES The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes .1 damages incurred by the Owner for rental expenses, for losses of use , income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s term ination in accordance with Article 14. Nothing contained in this Section 15.1.6 shall be deemed to preclude an award of liquidated damages, when applicable, in accordance with the requirements of the Contract Documents. § 15.2 INITIAL DECISION § 15.2.1 Claims, excluding those arising under Sections 10.3, 10.4, 11.3.9, and 11.3.10, shall be referred to the Initial Decision Maker for initial decision. The Architect will serve as the Initial Decision Maker, unless otherwise indicated in the Agreement. Except for those Claims excluded by this Section 15.2.1, an initial decision shall be required as a condition precedent to mediation of any Claim arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the I nitial Decision Maker with no decision having been rendered. Unless the Initial Decision Maker and all affected parties agree, the Initial Decision Maker will not decide disputes between the Contractor and persons or entities other than the Owner. § 15.2.2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one or more of the following actions: (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties that the Initial Decision Maker is unable to resolve the Claim if the Initial Decision Maker lacks sufficient information to evaluate the merits of the Claim or if the Initial Decision Maker concludes that, in the Initial Decision Maker’s sole discretion, it would be inappropriate for the Initial Decision Maker to resolve the Claim. § 15.2.3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Initial Decision Maker in rendering a decision. The Initial Decision Maker may request the Owner to authorize retention of such persons at the Owner’s expense. § 15.2.4 If the Initial Decision Maker requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of s uch request, and shall either (1) provide a response on the requested supporting data, (2) advise the Initial Decision Maker when the response or supporting data will be furnished or (3) advise the Initial Decision Maker that no supporting data will be fur nished. Upon receipt of the response or supporting data, if any, the Initial Decision Maker will either reject or approve the Claim in whole or in part. § 15.2.5 The Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating that the Initial Decision Maker is unable to resolve the Claim. This initial decision shall (1) be in writing; (2) state the reasons therefor; and (3) notify the parties and the Architect, if the Architect is not serving as the Initial Decisi on Maker, of any change in the Contract Sum or Contract Time or both. The initial decision shall be final and binding on the parties but subject to mediation and, if the parties fail to resolve their dispute through mediation, to binding dispute resolution. § 15.2.6 Either party may file for mediation of an initial decision at any time, subject to the terms of Section 15.2.6.1. § 15.2.6.1 Either party may, within 30 days from the date of an initial decision, demand in writing that the other party file for mediation within 60 days of the initial decision. If such a demand is made and the party receiving the demand fails to file for mediation within the time required, then both parties waive their rights to mediate or pursue binding dispute resolution proceedings with respect to the initial decision. AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 39 § 15.2.7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Con tractor’s default, the Owner may, but is not obligated to, notify the surety and request the surety’s assistance in resolving the controversy. § 15.2.8 If a Claim relates to or is the subject of a mechanic’s lien, the party asserting such Claim may procee d in accordance with applicable law to comply with the lien notice or filing deadlines. § 15.3 MEDIATION § 15.3.1 Claims, disputes, or other matters in controversy arising out of or related to the Contract except those waived as provided for in Sections 9.10.4, 9.10.5, and 15.1.6 shall be subject to mediation as a condition precedent to binding dispute resolution. § 15.3.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing, delivered to the other party to the Contract, and file d with the person or entity administering the mediation. The request may be made concurrently with the filing of binding dispute resolution proceedings but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. If an arbitration is stayed pursuant to this Section 15.3.2, the parties may nonetheless procee d to the selection of the arbitrator(s) and agree upon a schedule for later proceedings. § 15.3.3 The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 15.4 ARBITRATION § 15.4.1 If the parties have selected arbitration as the method for binding dispu te resolution in the Agreement, any Claim subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Co nstruction Industry Arbitration Rules in effect on the date of the Agreement. A demand for arbitration shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the arbitration. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded. § 15.4.1.1 A demand for arbitration shall be made no earlier than concurrently with the filing of a requ est for mediation, but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the Claim would be barred by the applicable statute of limitations. For statute of limitations purposes, receipt of a written demand for arbitration by the person or entity administering the arbitration shall constitute the institution of legal or equitable proceedings based on the Claim. § 15.4.2 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. § 15.4.3 The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof. § 15.4.4 CONSOLIDATION OR JOINDER § 15.4.4.1 Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration permits consolidation, (2) the arbitrations to be conso lidated substantially involve common questions of law or fact, and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s). § 15.4.4.2 Either party, at its sole discretion, may include by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration inv olving an AIA Document A201™ – 2007. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:25:35 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1697728566) 40 additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent. § 15.4.4.3 The Owner and Contractor grant to any person or entity made a party to an arbitration conducted under this Section 15.4, whether by joinder or consolidation, the same rights of joinder and consolidation as the Owner and Contractor under this Agreement. AIA® Document A101TM – 2007 Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum AIA Document A101™ – 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:23:34 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1312258422) 1 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. AIA Document A201™–2007, General Conditions of the Contract for Construction, is adopted in this document by reference. Do not use with other general conditions unless this document is modified. ELECTRONIC COPYING of any portion of this AIA® Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document. AGREEMENT made as of the «Second » day of «October » in the year «Two Thousand Thirteen » (In words, indicate day, month and year.) BETWEEN the Owner: (Name, legal status, address and other information) «City of Bremerton»« » «100 Oyster Bay Avenue N. Bremerton, WA 98312» « » « » and the Contractor: (Name, legal status, address and other information) «Jones & Roberts Company »« » «PO Box 1488 Olympia, WA 98507 » «Telephone Number: 360-456-4311 » « » for the following Project: (Name, location and detailed description) «City of Bremerton Kitsap Conference Center Expansion» «Bremerton WA» «The Contractor agrees to accomplish the Work in accordance with the Contract Documents.» The Architect: (Name, legal status, address and other information) «Rice Fergus Miller, Inc.»« » «275 5th Street, Suite 100 Bremerton, WA 98337» «Telephone Number: 360-377-8773» «Fax Number: 360-792-1385» The Owner and Contractor agree as follows. AIA Document A101™ – 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:23:34 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1312258422) 2 TABLE OF ARTICLES 1 THE CONTRACT DOCUMENTS 2 THE WORK OF THIS CONTRACT 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 4 CONTRACT SUM 5 PAYMENTS 6 DISPUTE RESOLUTION 7 TERMINATION OR SUSPENSION 8 MISCELLANEOUS PROVISIONS 9 ENUMERATION OF CONTRACT DOCUMENTS 10 INSURANCE AND BONDS ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement, all of which form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than a Modification, appears in Article 9. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents, except as specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. (Insert the date of commencement if it differs from the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed.) «Date to be issued in Notice to Proceed. » If, prior to the commencement of the Work, the Owner requires time to file mortgages and other security interests, the Owner’s time requirement shall be as follows: «N/A » § 3.2 The Contract Time shall be measured from the date of commencement. § 3.3 The Contractor shall achieve Substantial Completion of the entire Work not later than «One hundred twelve » ( «112 » ) days from the date of commence ment, or as follows: (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. If appropriate, insert requirements for earlier Substantial Completion of certain portions of the Work.) « » AIA Document A101™ – 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:23:34 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1312258422) 3 Portion of Work Substantial Completion Date , subject to adjustments of this Contract Time as provided in the Contract Documents. (Insert provisions, if any, for liquidated damages relating to failure to achieve Substantial Completion on time or for bonus payments for early completion of the Work.) «N/A » ARTICLE 4 CONTRACT SUM § 4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor’s performance of the Contract. The Contract Sum shall be «Six Hundred Five Thousand Dollars and Zero Cents » ($ «605,000.00 » ), subject to additions and deductions as provided in the Contract Documents. § 4.2 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If the bidding or proposal documents permit the Owner to accept other alternates subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires.) «Alternate 01: Meeting Rooms 1 and 2 Build-out, $95,000 Alternate 02: Interior Painting $14,000 Alternate 03: Flooring and Base $32,900 » § 4.3 Unit prices, if any: (Identify and state the unit price; state quantity limitations, if any, to which the unit price will be applicable.) Item Units and Limitations Price Per Unit ($0.00) None § 4.4 Allowances included in the Contract Sum, if any: (Identify allowance and state exclusions, if any, from the allowance price.) Item Price None ARTICLE 5 PAYMENTS § 5.1 PROGRESS PAYMENTS § 5.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 5.1.2 The period covered by each Application for Payment shall be one calendar month endin g on the last day of the month, or as follows: « » § 5.1.3 Provided that an Application for Payment is received by the Architect not later than the « » day of a month, the Owner shall make payment of the certified amount to the Contractor not later tha n the « » day of the « » month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner not later than « » ( « » ) days after the Architect receives the Application for Payme nt. (Federal, state or local laws may require payment within a certain period of time.) § 5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form and supported AIA Document A101™ – 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:23:34 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1312258422) 4 by such data to substantiate its accuracy as the Architect may require. This schedule, unles s objected to by the Architect, shall be used as a basis for reviewing the Contractor’s Applications for Payment. § 5.1.5 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of «Five » percent ( «5.00 » %). Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 7.3.9 of AIA Document A201™–2007, General Conditions of the Contract for Construction; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of «Five » percent ( «5.00 » %); .3 Subtract the aggregate of previous payments made by the Owner; and .4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201–2007. § 5.1.7 The progress payment amount determined in accordance with Section 5.1.6 shall be further modified under the following circumstances: .1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Architect shall determine for incomplete Work, retainage applicable to such work and unsettled claims; and (Section 9.8.5 of AIA Document A201–2007 requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if any.) .2 Add, if final completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional amounts payable in accordance with Section 9.10.3 of AIA Document A201–2007. § 5.1.8 Reduction or limitation of retainage, if any, shall be as follows: (If it is intended, prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections 5.1.6.1 and 5.1.6.2 above, and this is not explained elsewhere in the Contract Documents, insert here provisions for such reduction or limitation.) «N/A » § 5.1.9 Except with the Owner’s prior approval, the Contractor shall not make advance pay ments to suppliers for materials or equipment which have not been delivered and stored at the site. § 5.2 FINAL PAYMENT § 5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when .1 the Contractor has fully performed the Contract except for the Contractor’s responsibility to correct Work as provided in Section 12.2.2 of AIA Document A201–2007, and to satisfy other requirements, if any, which extend beyond final payment; and .2 a final Certificate for Payment has been issued by the Architect. § 5.2.2 The Owner’s final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect’s final Certificate for Payment, or as follows: «N/A » AIA Document A101™ – 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:23:34 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1312258422) 5 ARTICLE 6 DISPUTE RESOLUTION § 6.1 INITIAL DECISION MAKER The Architect will serve as Initial Decision Maker pursuant to Section 15.2 of AIA Document A201 –2007, unless the parties appoint below another individual, not a party to this Agreement, to serve as Initial Decision Maker. (If the parties mutually agree, insert the name, address and other contact information of the Initial Decision Maker, if other than the Architect.) «N/A » « » « » « » § 6.2 BINDING DISPUTE RESOLUTION For any Claim subject to, but not resolved by, mediation pursuant to Section 15.3 of AIA Document A201 –2007, the method of binding dispute resolution shall be as follows: (Check the appropriate box. If the Owner and Contractor do not select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, Claims will be resolved by litigation in a court of competent jurisdiction.) [ « » ] Arbitration pursuant to Section 15.4 of AIA Document A201 –2007 [ « » ] Litigation in a court of competent jurisdiction [ «X » ] Other (Specify) «In accordance with the Supplemental Conditions. » ARTICLE 7 TERMINATION OR SUSPENSION § 7.1 The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of AIA Document A201–2007. § 7.2 The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201 –2007. ARTICLE 8 MISCELLANEOUS PROVISIONS § 8.1 Where reference is made in this Agreement to a provision of AIA Document A201 –2007 or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. § 8.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any.) « » % « » § 8.3 The Owner’s representative: (Name, address and other information) «Chal A. Martin» «100 Oyster Bay Avenue N. Bremerton, WA 98312» «Telephone Number: 360-473-5315» «Email Address: chal.martin@ci.bremerton.wa.us» § 8.4 The Contractor’s representative: (Name, address and other information) AIA Document A101™ – 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:23:34 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1312258422) 6 «Robert E. Roberts » «PO Box 1488 Olympia, WA 98507» «Telephone Number: 360-456-4311 » «Email Address: bobroberts@jonesandroberts.com » § 8.5 Neither the Owner’s nor the Contractor’s representative shall be changed without ten days written notice to the other party. § 8.6 Other provisions: «None » ARTICLE 9 ENUMERATION OF CONTRACT DOCUMENTS § 9.1 The Contract Documents, except for Modifications issued after execution of this Agre ement, are enumerated in the sections below. § 9.1.1 The Agreement is this executed AIA Document A101–2007, Standard Form of Agreement Between Owner and Contractor. § 9.1.2 The General Conditions are AIA Document A201 –2007, General Conditions of the Contract for Construction. § 9.1.3 The Supplementary and other Conditions of the Contract: Document Title Date Pages Supplemental Conditions issued as part of Addendum 01 Section 007300 - Supplemental Conditions September 16, 2013 19 § 9.1.4 The Specifications: (Either list the Specifications here or refer to an exhibit attached to this Agreement.) «Exhibit A: Project Manual prepared by Rice Fergus Miller for the City of Bremerton Kitsap Conference Center Expansion, dated September 6, 2013 » Section Title Date Pages § 9.1.5 The Drawings: (Either list the Drawings here or refer to an exhibit attached to this Agreement.) «Exhibit B: Construction Documents prepared by Rice Fergus Miller for the City of Bremerton Kitsap Conference Center Expansion, dated September 6, 2013 » Number Title Date § 9.1.6 The Addenda, if any: Number Date Pages 01 September 16, 2013 47 02 September 20, 2013 27 03 September 25, 2013 1 Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 9. § 9.1.7 Additional documents, if any, forming part of the Contract Documents: AIA Document A101™ – 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 13:23:34 on 08/12/2013 under Order No.5649048242_1 which expires on 11/08/2013, and is not for resale. User Notes: (1312258422) 7 .1 AIA Document E201™–2007, Digital Data Protocol Exhibit, if completed by the parties, or the following: «Rice Fergus Miller Electronic Data Release as included in the Project Manual. » .2 Other documents, if any, listed below: (List here any additional documents that are intended to form part of the Contract Documents. AIA Document A201–2007 provides that bidding requirements such as advertisement or invitation to bid, Instructions to Bidders, sample forms and the Contractor’s bid are not part of the Contract Documents unless enumerated in this Agreement. They should be listed here only if intended to be part of the Contract Documents.) «Supplemental Conditions as issued with Addendum 01, September 16, 2013» ARTICLE 10 INSURANCE AND BONDS The Contractor shall purchase and maintain insurance and provide bonds as set forth in Article 11 of AIA Document A201–2007. (State bonding requirements, if any, and limits of liability for insurance required in Article 11 of AIA Document A201–2007.) Type of insurance or bond Limit of liability or bond amount ($0.00) In accordance with the General Conditions of the Contract, modified by the Supplemental Conditions. This Agreement entered into as of the day and year first written above. IN WITNESS WHEREOF, the parties below have executed this agreement. CONTRACTOR THE CITY OF BREMERTON Print Name: Print Name: Title: Title: DATE: DATE: Notices to be sent to: Notices to be sent to: CONTRACTOR: CITY OF BREMERTON: Jones & Roberts Company ______________________________ PO Box 1488 ______________________________ Olympia, WA 98507 Bremerton, WA 98337 Telephone Number: 360-456-4311 (360) (360) (facsimile) APPROVED AS TO FORM: Bremerton City Attorney ATTEST: Bremerton City Clerk City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 1 SECTION 007300 - SUPPLEMENTAL CONDITIONS The following supplements modify, change, delete from, or add to the referenced AIA A-201 “General Conditions of the Contract for Construction.” Where any article of the General Conditions is Modified or any Paragraph, Subparagraph, or Clause is modified or deleted by Section 007300, the unaltered provisions of that Article, Paragraph, Subparagraph, or Clause remain in effect. Modification to the General Conditions: ARTICLE 1 CONTRACT DOCUMENTS 1.1.1 THE CONTRACT DOCUMENTS Add the following new subparagraphs 1.1.1.1 and 1.1.1.2: 1.1.1.1 In the event of a conflict or discrepancy among or in the Contract Documents, interpretation shall be governed in the following priority: 1. Agreement (A-101) 2. Supplemental Conditions 3. General Conditions (A-201) 4. Addenda 5. Schedules 6. Drawings 7. Specifications 8. Instructions to Bidders and Accepted Bid 1.1.1.2 In the event of any inconsistencies, conflicts or ambiguities between the Contract Documents, or within an individual document not clarified by addendum, the resolution of such inconsistencies, conflict or ambiguity shall be provided in accordance with the Architect’s interpretation. All conflicts are to be referred to the Architect for resolution and incorporation into a Contract Modification, if appropriate. 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS Add the following new subparagraphs 1.2.1.1 and 1.2.1.2: 1.2.1.1 Such execution of the Contract also constitutes a representation by the Contractor that it can fully perform the Contract and deal with all issues arising out of the Contract Documents or conditions of the site of the Work for the Contract Amount. The failure of the Contractor fully to acquaint itself with any applicable condition or matter shall not in any way relieve the Contractor from the responsibility for performing the Work in accordance with the Contract Documents and within the Contract Time and the Contract Sum. 1.2.1.2 Contractor to make the following representation to Owner: A. Contractor is financially solvent, able to pay its debts as they mature, and possesses sufficient working capital to complete the Work and perform Contractor’s obligations required by the Contract Documents; and B. Contractor is able to furnish the plant, tools, materials, supplies, equipment and labor required to complete the Work and perform the obligations required by the Contract Documents and has sufficient experience and competence to do so. City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 2 ARTICLE 2 OWNER 2.1 GENERAL Add the following new subparagraphs 2.1.1.1 and 2.1.1.2: 2.1.1.1 The Owner is the City of Bremerton. 2.1.1.2 The Owner shall designate a Project Manager to act on behalf of the Owner. Unless specifically limited by the Owner, the Project Manager shall have, at their discretion, complete authority to transmit instructions, receive information, to interpret and define Owner’s policies and decisions with respect to Work, and to approve Construction Change Directives within established budget limits. The Owner shall retain the final decision on acceptance of the contract and approval of any proposed Change Orders or proposed Construction Change Directives except for the limited delegation in this paragraph. Except for the limited approval authority delegated for Construction Change Directives, the Owner shall have the sole authority to authorize any change to the provisions of the contract which the Contractor claims may entitle the Contractor to any time or equitable adjustment or extra compensation. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER Delete subparagraph 2.2.5 and substitute the following: 2.2.5 The Contractor will be furnished free of charge PDF files of Drawings and Project Manuals for the purposes of making reproductions pursuant to Section 1.5.2. Add the following new subparagraphs 2.5 through 2.5.1: 2.5 OWNER’S RIGHT AND RESPONSIBILITES 2.5.1 The Owner will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor’s responsibility as provided in Paragraph 3.3. The Owner will not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portion of the Work. ARTICLE 3 CONTRACTOR 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES Add the following to subparagraph 3.3.1: 3.3.1 If the Contractor has any concerns, objections or reservations concerning such specific instructions, the Contractor must raise and resolve such issues with the Architect and the Owner prior to performing such specific instructions. 3.4 LABOR AND MATERIALS Add the following to subparagraph 3.4.3: 3.4.3 At no change to the Contract Sum or Contract Time, the Owner may provide written notice requiring the Contractor to remove from the Work any employee, subcontractor employee, or other person carrying out the Contract whom the Owner reasonably considers objectionable. City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 3 Add the following subparagraph 3.4.4 through 3.4.4.6: 3.4.4 PREVAILING WAGES 3.4.4.1 The Washington State Department of Labor and Industries Prevailing Wage Rates are part of the Contract. 3.4.4.2 Washington State Department of Labor and Industries Prevailing Wage Rates which are in effect on the date when the bids by the Prime Contractor are required to be submitted are in effect for this project. It is the Contractor’s responsibility to follow the correct edition. 3.4.4.3 No worker may be paid less than the prevailing minimum hourly wage rate established by the State Department of Labor and Industries. Statements of Intent to Pay Prevailing Wages and Affidavits of Wages Paid are required. The Contractor shall fully comply with all current applicable labor laws and regulations, including without limitation RWC Chapters 39.12 (Prevailing Wages); 49.28 (Hours of labor); and 49.70 (Worker Right to Know). 3.4.4.4 Any fabricator or manufacturer that produces nonstandard items and is considered by the Department of Labor and Industries as a contractor must comply with all of the requirements of RCW 39.12, including but not limited to the filing of the “Statement of Intent to Pay Prevailing Wages” and “Affidavit of Wages Paid” with the Department of Labor and Industries Industrial Statistician. 3.4.4.5 The Owner reserves the right to perform wage rate interviews and/or require Contractor submission of certified payrolls for all Contractor and Subcontractor personnel. 3.4.4.6 Contractor shall provide Owner with copies of the Intent to Pay Prevailing Wage forms as filed with the State of Washington for the contractor’s forces and for all subcontractors. 3.6 TAXES Change subparagraph 3.6 to read: 3.6 The Contractor shall pay all applicable State and Local Sales, Consumer, Use and other similar taxes for Work or portions thereof provided by the Contractor. The Owner shall include these taxes in his payments to the Contractor who shall pay the taxes to the proper authorities in accordance with the applicable laws and regulations governing this project. Sales tax will not be included in bid amount. 3.7 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS Delete subparagraph 3.7.1 and substitute the following: 3.7.1 The Owner shall secure and pay for the Plan Review Fees, Building Permit(s), Demolition Permit(s), Sign Permit(s), Water, Sanitary Sewer, and Storm Sewer Tap/Capacity/General Facility Charges/Permits/Fees, Utility Fees,. L&I Electrical Plan Review Fees,. The Contractor shall secure and pay for all other permits and governmental fees, licenses and inspections necessary for proper execution of and completion of the Contract which are legally required when bids are received. 3.9 SUPERINTENDENT Add the following to subparagraphs 3.9.3: During the construction period should the initial superintendent fall ill, retire, be laid off or terminated employment, the Owner reserves the right to review and accept the replacement as stated above. Add the following subparagraph 3.9.4: 3.9.4 The Superintendent shall remain on the Project whenever Subcontractors are present and not less than eight hours per day, five days a week unless the job is closed down due to a legal holiday, a City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 4 general strike, conditions beyond the control of the Contractor, termination of the Contract in accordance with the Contract Documents, or Final Completion is attained. 3.10 CONTRACTOR’S CONSTRUCTION SCHEDULE Change this entire paragraph 3.10 to read: 3.10.1 Within (7) calendar days following Notice to Proceed, the Contractor shall submit to the Owner and the Architect for review and comment, three copies of a CPM Schedule in form satisfactory to the Owner for Contractor’s construction/erection of the Work. The initial and any revisions of the Project Schedule shall be prepared and submitted in paper form. With each approved monthly payment request, provide an updated Progress Schedule. Not less than 5% (in retention) of Progress Payments to the Contractor may be withheld by the Owner until such initial and updated Progress Schedules have been timely submitted for review by the Owner and the Architect. 3.10.2 The Project Schedule shall consist of a network diagram with activity descriptions and durations and supporting data which will explain the Contractor’s planning of the work. Contractor shall provide, if requested by Owner, cost allocation and resource estimates for each activity. 3.10.2.1 The CPM Schedule diagram shall include: (a) The order and interdependence of the Contractor’s activities and the major points of the interface or interrelation with the activities of others, including Specific Dates for completion. (b) Conformance with and identification of the Specific Dates specified in the Contract Documents. (c) The descriptions of work by activity. (d) The time required for preparation, and review of shop drawings, mock-ups, manufacturing, and delivery of Contractor-furnished permanent plant materials, especially long lead items. (e) Critical Path (or Paths). (f) Testing of equipment and materials. The CPM Schedule shall provide a complete and detailed sequence of operations of the Work within the time limits specified in the Contract. 3.10.2.2 The identity and duration of all activities to be included in this CPM Schedule shall meet the following criteria: (a) Activity descriptions shall be clear and concise. The beginning and end of each activity shall be readily verifiable. (b) Responsibility for each activity shall be identified with a single performing organization. (c) The identity of any potential problems or constraints related to the implementation of the overall construction plan. 3.10.2.3 A schedule for the purchase of items required for performance of the Work, showing lead items between purchase order placement and delivery dates, shall be integrated with the Progress Schedule upon request of the Owner. The Contractor shall furnish the Architect with copies of all purchase orders and acknowledgements and fabrication, production, and shipping schedules for all major items on the critical path within 10 days of Contractor’s receipt of each purchase order, acknowledgment or schedule. Neither the Architect nor the Owner shall be deemed to have approved or accepted any such material, or its schedule, nor deemed to have waived this requirement if some or all of the material is not received. City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 5 3.10.3 The CPM Schedule shall indicate an early completion date for the project that is not later than the project’s required completion date. All activity durations shall be given in calendar days. The CPM Schedule shall also indicate each of the following: (a) Interfaces with the work of outside contractors, e.g., utilities, power, and with any separate contractor. (b) Descriptions of activity including activity numbers. (c) Estimated duration time for each activity. (d) Early start date for each activity. (e) Late start date for each activity. (f) Early finish date for each activity. (g) Late finish date for each activity. (h) Float available for each batch of activities containing float. (i) Actual start date for each activity begun. (j) Actual finish date for each activity completed. (k) Identification of all Critical Path activities in the mathematical analysis. (l) The Critical Path for the project, with said path of activities being clearly and easily recognizable on the time-scaled CPM Schedule Diagram. The relationship between all non- critical activities and activities on the Critical Path shall be clearly shown on the CPM Schedule Diagram. 3.10.4 It is to be expressly understood and agreed by the Contractor that the schedule is an estimate to be revised from time-to-time as progress proceeds, and that the Owner does not guarantee that Contractor can start work activities on the “early start” or “late start” dates or complete work activities on the “early finish’ or “late finish” date shown in the Schedule, or as same may be upgraded or revised; nor does the Owner guarantee that Contractor can proceed at all times in the sequence established by said Schedule. If Contractor’s schedule indicates that Owner or separate contractor is to perform an activity by a specific date, or within a certain duration, Owner or any separate contractor under contract with the Owner shall not be bound to said date or duration unless Owner expressly and specifically agrees in writing to same; the Owner’s or the Architect’s overall review and approval or acceptance of the Schedule does not constitute an agreement to specific dates, durations or sequences for activities of the Owner of any separate contractor. 3.10.5 Should any of the conditions exist such that certain activities shown on the Contractor’s CPM Schedule fall behind schedule to the extent that any of the specific dates are in jeopardy, the Contractor shall be required to, at no extra cost to the Owner, prepare and submit to the Owner a supplemental Recovery Schedule, in a form and detail appropriate to the need, to explain and display how he intends to reschedule those activities to regain compliance with the CPM Schedule during the immediately subsequent pay period. 3.10.6 The Contractor shall do the following after determination of the requirement for a Recovery Schedule: (a) Within three (3) calendar days, the Contractor shall submit a Recovery Schedule to the Owner for review. The Recovery Schedule shall be prepared to a similar level of detail as the CPM Schedule and shall have a maximum duration of one (1) month. (b) Any revisions necessary as a result of this review shall be resubmitted by the Contractor with any necessary revisions for acceptance within two (2) calendar days of the review. The City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 6 approved Recovery Schedule shall then be the Schedule which the Contractor shall use in planning, organizing, directing, coordinating, performing and executing the Work (including all activities of subcontractors, equipment vendors, and suppliers) for its one (1) month duration, to regain compliance with the CPM Schedule. 3.10.7 Should the Contractor, after approval of the initial CPM Schedule desire to change his plan of construction, he shall submit his requested revisions to the Owner including a description of the logic for rescheduling the work, methods of maintaining adherence to Intermediate Milestones and Specific Dates. The Contractor shall revise his Schedule to include the effect of changes, acts of God or other conditions or events which have affected the CPM Schedule, If the requested changes are acceptable to the Owner, they will be incorporated by the Contractor into the CPM Schedule in the next reporting period. The resultant cost to the Owner for significant changes or a significant number of changes to the CPM Schedule shall be paid for by the Contractor. 3.10.8 When the Owner orders changes by Change Order which have the potential to impact the Contract Milestones or Specific Dates stipulated, a Network will be prepared by the Contractor and provided to the Project Manager. After the Network has been accepted by the Owner, it will be incorporated into the CPM Schedule by the Contractor. 3.10.9 Failure of the Contractor to substantially comply with any of the scheduling requirements of this Contract at no cost to the Owner shall constitute cause that the Contractor is failing to prosecute the Work with such diligence as will insure its completion within the Contract times and shall be considered cause for termination by the Owner, pursuant to Article 14 of the General Conditions; and may also result in the Owner’s withholding of Progress Payment(s) until the Contractor complies. 3.10.10 Float time is defined as the amount of time between earliest start date and the latest start date or between the earliest finish date or the latest finish date of a chain of activities on the CPM Schedule. Float time is not for the exclusive use or benefit of either the Contractor of the Owner. Contractor’s work shall proceed according to start dates, and the Owner shall have the right to reserve and apportion float time according to the needs of the project. The Contractor acknowledges and agrees that actual delays, affecting paths of activities containing float time, will not have any effect upon Contract Completion times, providing that the actual delay does not exceed the float time associated with those activities. Extensions of time for performance as described in the Contract Documents will be granted only to the extent that time adjustments for the activity or activities affected by any condition or event which entitles the Contractor to a time extension exceeds the total float or slack time along the actual critical path of activities affected at the time of Notice to Proceed of a Change Order or the commencement of any delay, claim or condition for which an adjustment is claimed or warranted under the Contract Documents. 3.10.11 The Schedule Duration shall be based on the Contract Time of Completion listed on the Bid Form. The Owner shall not be obligated to accept any Early Completion Schedule suggested by the Contractor. The Contract Time for Completion shall establish the Schedule Completion Date. If the Contractor feels that the work can be completed in less than the Specified Contract Time, then the Surplus Time shall be considered Project Float. This Float time shall be shown on the Project Schedule. It shall be available to accommodate changes in the work and unforeseen conditions. Neither the Contractor nor the Owner have exclusive right to this Float Time. It belongs to the project. City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 7 3.11 DOCUMENTS AND SAMPLES AT THE SITE Add the following new subparagraphs 3.11.1 and 3.11.2: 3.11.1 In addition, the Contractor shall keep the approved permit set of plans at the jobsite during construction, in good condition. Prior to final acceptance, the Contractor shall deliver this permit set to the Architect. 3.11.2 Satisfactory maintenance of up-to-date record drawings will be a requirement for approval of monthly Progress Payments. ARTICLE 5 SUBCONTRACTORS 5.3 SUBCONTRACTUAL RELATIONS Add the following new subparagraph: 5.3.1 The Contractor shall schedule, supervise and coordinate the operations of all Subcontractors. No subcontracting of any of the Work shall relieve the Contractor from its responsibility for the performance of the Work in accordance with the Contract Documents or from its responsibility for the performance of any other of its obligations under the Contract Documents. ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 6.2 MUTUAL RESPONSIBILITY Add the following to paragraph: 6.2.1 If the Contractor receives items from a separate contractor or from the Owner for storage, erection or installation, the Contractor shall acknowledge receipt for items delivered, and thereafter will be held responsible for care, storage and any necessary replacement of item or items received. At subparagraph 6.2.4, delete the word “wrongfully.” ARTICLE 7 CHANGES IN THE WORK 7.2 CHANGE ORDERS Add the following paragraphs 7.2.2 through 7.2.5: 7.2.2 Change proposal disagreements shall be submitted by the Contractor to the Architect in a form satisfactory to the Owner for such submittals. The total cost of any change, including a claim shall be limited to the reasonable value thereof, to be determined in the following manner: 7.2.3 ADDITIVE CHANGES: 1a. Direct Labor Costs: This is defined as the estimated labor costs determined by either the estimated number of craft hours and the hourly costs necessary to perform the change in work; or the unit labor costs necessary to perform the change in work; or the unit labor costs applied to the material quantities, provided said unit labor costs are developed from the City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 8 above craft man hour cost; whichever is applicable, according to industry practice. The hourly cost shall be based on the following: 1. Basic Wages: Current minimum prevailing hourly wage rates, including vacation pay, for all labor, crew foreman, and general foreman performing and/or directly supervising the work on site. These rates, whichever are applicable, are established by the State of Washington, Department of Labor and Industries. 2. Fringe Benefits: Fringe benefits established by the State of Washington, Department of Labor and Industries or contributed to labor trust funds as itemized fringe benefits, whichever is applicable. 3. Worker’s Insurance: Direct contributions to the State of Washington as Industrial Insurance; Medical Aid; and Supplemental Pension, by the class and rates established by the State of Washington, Department of Labor and Industries. 4. Federal Insurance’s: Direct contributions required by the Federal Insurance Compensation Act (FICA); Federal Unemployment Tax Act (FUTA); and the State Unemployment Compensation Act (SUCA). 5. Costs incurred by the Washington Industrial Safety and Health Act (WISHA); established as 2% of 1, 2, 3, and 4 above. 6. Travel allowances and/or subsistence if applicable not to exceed those established by Regional Labor Union Agreements shall be itemized and identified separately. 1b. Direct Material Costs: This is defined as an itemization of the estimated quantity of materials necessary to perform the change in the work and the cost thereof. These costs shall be by the unit cost applied to the quantity and extended. The unit costs shall be based on the following: 1. The net costs after all offered or available discounts or rebates. 2. Freight costs; express charges; or special delivery costs when applicable. No lump sum costs will be allowed except when approved in advance by the Architect 1c. Construction Equipment Usage Costs: 1. Rental Equipment: This is defined as an itemization of and the estimated length of time construction equipment will be used on change order work at the site. The rental costs applied thereof will be the rates established by the following whichever is applicable: a) The current hourly rental rates established by agreement between the Associated General Contractors (AGC) and Washington State Department of Highways. b) The current rental rates established by the State of Washington, utilities and Transportation Commission for trucks used on highways. c) The current rental rates established by the National Electrical Contractor's Association (NECA) for equipment used on electrical work. d) The current rental rates established by the mechanical Contractor's Association for equipment used on mechanical work. e) If equipment is required for which a rental rate is not established in any of the above, an agreed rental rate shall be established for that equipment. Such rates and the use of the equipment on the work must be approved by the Architect prior to performing the work. f) The rates in effect at the time of performance of the work are the maximum rates allowable for equipment of modern design and in good working condition and include full compensation for furnishing all fuel, oil, lubrication, repairs, maintenance, and insurance. 2. Small Tools, Expendable and Consumable Supplies: City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 9 a) These are general in nature and are defined as tools for which the initial purchase price is under $250 and are normally furnished by the performing contractor. b) The allowable rate for small tools will be: - General Contractors, 3% direct labor costs - Specialty Contractors, 5% direct labor costs c) Expendable and consumable supplies directly associated with the change in work to be itemized. 1d. Subcontractor Proposals: Subcontractors' proposals are to be itemized as in 1a, 1b, and 1c above. 1e. Overhead and Profit by the Contractor Actually Performing the Work: A total amount, not to exceed 10% of items 1a, 1b, and 1c above will be allowed. This is to compensate such contractor for all personnel not defined in 1a above; temporary construction facilities; home office costs; office architecting and estimating costs; profit, and any other cost incidental to the performance of the change in work. 1f. Overhead and Profit by the Contractor and Subcontractor when Subcontractor actually performs the Work: 1. A total amount not to exceed 8% of the total amount of subcontractors proposal as defined in 1d above will be allowed to the Contractor for all overhead and profit to supervise and administer the subcontractors actually performing the change in the work. The Subcontractor doing the work will be allowed no more than 10%. Lower tier sub-subcontractors will be allowed no more than 7%. 2. No direct costs of the Contractor will be allowed to be added to a subcontractor's proposal. Contractor's direct cost, if required, must be submitted as outlined in 1a, 1b, 1c and 1g. 1g. Cost of Any Increase or Decrease in Premium for Insurance and Bond Caused by the Change: 1. Contractor's Liability Insurance: To the above, the costs of the Contractor's Liability Insurance may be increased or decreased. 2. Bond: To the above, the cost of the Contractor's Bond may be increased or decreased. 7.2.4 DEDUCTIVE CHANGES 2a. Items 1a (labor), 1b (material), 1c (equipment), 1d (subcontractor), 1e (overhead and profit, Contractor), 1f (overhead and profit, subcontractor), 1g (insurance and bond) will be itemized for deleted changes in the work. 7.2.5 ADDITIVE CHANGES AND DEDUCTIVE CHANGES TOGETHER 3a. If a change in the work involves both additive and deductive changes, the appropriate overhead and profit amount allowed will be added to the net difference of items 1a, 1b, 1c, and 1d. 3b. If other additive unrelated changed items are included in the same change proposal, the appropriate overhead and profit allowed is to be applied to these individual change items. ARTICLE 8 TIME 8.2 PROGRESS AND COMPLETION Add the following new subparagraphs 8.2.4 and 8.2.5: City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 10 8.2.4 The Contractor shall furnish such manpower, materials, facilities, and equipment and shall work such hours, including night shifts, overtime operations and Sundays and holidays, as may be necessary to insure the progress and completion of the Work in accordance with the approved and currently updated Progress Schedule. If work actually in place falls behind the currently updated and approved Progress Schedule and it becomes apparent from the current schedule that the Work will not be completed within the Contract Time, the Contractor agrees that he will, as necessary, take some or all of the following actions at no additional cost to the Owner, as required to substantially eliminate tardiness of Work: 1. Increase the manpower in such quantities and crafts as will substantially eliminate, in the opinion of the Owner, the backlog of Work. 2. Increase the number of working hours per shift, shifts per working day, working days per week, or the amount of equipment, or any combination of the foregoing sufficiently to substantially eliminate, in the opinion of the Owner, the backlog of Work; and 3. Reschedule activities to achieve maximum practical concurrency of accomplishment of activities. 8.2.5 The Contractor and Owner acknowledge and contemplate that delay in substantial completion and final completion will cause the Owner substantial damages which are difficult to determine precisely. To the extent the Owner is unable to beneficially occupy each of the facilities which are the subject of this Contract, the Owner is expected to experience damages and costs including but not limited to the following: Loss of use of the facility; the costs of delayed move-in and the disruption of Owner activities and schedule; and rescheduling and shift changes to paid personnel. The parties therefore agree that the following sums of liquidated damages shall be paid to the Owner (or the Owner may withhold payments otherwise due to the Contractor) in liquidation of these difficult to measure damages and/or delay costs reasonably anticipated as a result of delays beyond the dates as established in the Contract, as they may be extended by agreement of the parties by change order during the course of the project: SUBSTANTIAL COMPLETION: For each calendar day after the date fixed for Substantial Completion and until Substantial Completion of the facilities, the Contractor shall pay the Owner the sum of One- thousand ($ 1,000.00). The Owner shall not be required to accept Substantial Completion of anything less than the entirety of the project but shall have the option to do so. This sum is to be fixed, agreed, liquidated damages and not to be construed as in any sense a penalty. FINAL COMPLETION: Actual damages will be assessed for failure to achieve Final Completion within 14 days after Substantial Completion. Actual damages will be calculated on the basis of direct architectural, administrative, and other related costs attributed to the Project from the date when Final Completion should have been achieved, to the date Final Completion is actually achieved. Owner may offset these costs against any payment due to the Contractor by reduction in retainage. 8.3 DELAYS AND EXTENSIONS OF TIME Change subparagraph 8.3.3 to read: 8.3.3 Except as provided in this subparagraph, the Contractor’s sole remedy for delays shall be an extension of time. Except for unreasonable delays in performance caused by the acts or omissions of the Owner, the Contractor shall not be entitled to damages, extra compensation or equitable adjustment for direct, indirect or impact damages for delay, including but not limited to cost of acceleration, home office overhead or lost profits. All claims for damages or extensions of time are subject to the requirements of Article 15. In the event the Contractor is entitled to damages from the City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 11 Owner for delay, it is agreed that the Contractor’s sole damages for each day of delay shall be limited to the daily liquidated damage rate provided for the Owner in subparagraph 8.2.5 above. ARTICLE 9 PAYMENT AND COMPLETION 9.3 APPLICATIONS FOR PAYMENT Add the following new subparagraph: 9.3.1.3 Until Substantial Completion, the Owner shall pay 95 percent of the amount due the Contractor on account of progress payments. Add the following new subparagraph: 9.3.4 If authorized by the Owner, the Application for Payment may include request for payment for material delivered to the Project site and suitably stored, or for completed preparatory work. Payment may similarly be requested, subject to Owner’s approval, for material stored off the Project site, provided the Contractor complies with or furnishes satisfactory evidence of the following: 1. The material will be placed in a warehouse that is structurally sound, dry, lighted and suitable for the materials to be stored; 2. The warehouse is located within a 25-mile radius of the project. Other locations may be utilized, if approved in writing, by Owner; 3. Only materials for the Project are stored within the warehouse (or a secure portion of a warehouse set aside for the Project); 4. Contractor furnishes Owner a certificate of insurance extending Contractor’s insurance coverage for damage, fire, and theft to cover the full value of all materials stored, or in transit; 5. The warehouse (or secure portion thereof) is continuously under lock and key, and only Contractor’s authorized personnel shall have access; 6. Owner shall at all times have the right of access in company of the Contractor; 7. Contractor and its surety assume total responsibility for the stored materials; and 8. Contractor furnishes to Owner certified lists of materials stored, bills of lading, invoices, and other information as may be required, and shall also furnish notice to owner when materials are moved from storage to the Project site. 9.5 DECISIONS TO WITHHOLD CERTIFICATION Add the following to subparagraph 9.5.1: The Architect may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or part of a Certificate for Payment previously issued, or the Owner may refuse to process an application for payment to such extent as may be necessary in the Owner’s or Architect’s opinion to protect the Owner from loss because of: Add the following new subparagraphs 9.5.1.8 through 9.5.1.12: 9.5.1.8 Unsatisfactory prosecution of the Work by the Contractor, including but not limited to failure to carry out the Work in accordance with the Contract Documents. 9.5.1.9 Failure or refusal of the Contractor to fully comply with requirements in the Contract Documents for preparation and submission of scheduling of the Work and updates thereof, or failure to present statements of Intents or Affidavits pertaining to prevailing wages paid as may be required by statue. City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 12 9.5.1.10 Liquidated damages. 9.5.1.11 Failure to provide adequate security measures to protect materials stored on site for which the Contractor is seeking payment for. 9.5.1.12 Failure to provide evidence that the performance and payment bonds have been increased to equal the sum of Change Orders. 9.6 PROGRESS PAYMENTS Add the following new subparagraphs 9.6.8 through 9.6.13: 9.6.8 Upon Commencement of the Work and at the option of the Contractor, an escrow account may be established by the Contractor in a financial institution chosen by the Contractor and approved by the Owner. 9.6.9 The escrow agreement shall provide that the financial institution will act as escrow agent, will pay interest on funds deposited in such account in accordance with the provisions of the escrow agreement and will disburse funds from the account upon the direction of the Owner as set forth below. Compensation to the escrow agent for establishing and maintaining the escrow account shall be paid from interest accrued in the escrow account. 9.6.10 As each progress payment is made, the retainage with respect to that payment shall be deposited by the Owner in the escrow account. 9.6.11 The interest earned on funds in the account shall accrue for the benefit of the Contractor until the substantial completion date named in the Construction Contract or the expiration of any authorized extension of such date. Interest earned after such date shall accrue for the benefit of the Owner. Cost of compensation to the escrow agent paid out of interest earned shall be borne by the Contractor. 9.6.12 When the Contractor has fulfilled all of the requirements of the Contract providing for reduction of retained funds, the escrow agent shall release to the Contractor one-half of the accrued funds but none of the interest thereon. When the Work has been fully completed in a satisfactory manner and the Architect has issued a final Certificate for Payment, the escrow agent shall pay to the Contractor the full amount of funds remaining in the account, including net balance of the interest paid to the account, but less any interest that may have accrued for the benefit of the Owner, which shall be paid to the Owner. 9.6.13 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor, the escrow agent shall make payment to the Contractor as provided in Subparagraph 9.10.3 9.8 SUBSTANTIAL COMPLETION Change subparagraph 9.8.1 to read: 9.8.1 Substantial Completion is the stage in the progress of the Work (or portion thereof designated and approved by the Architect and Owner) when the construction is sufficiently complete, in City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 13 accordance with the Contract Documents, so the Owner can fully occupy under necessary permits the Work (or portion thereof designated by the Owner) for the use for which it is intended. All Work other than incidental corrective or punch list work and final cleaning shall have been completed. Add the following new subparagraph: 9.8.6 The acceptance of Substantial Completion payment shall constitute a waiver of all claims by the Contractor except those previously made in writing and identified by the Contractor as unsettled at the time of the application for payment for the Substantial Completion payment, and except for the Contract Sums due at Final Acceptance. 9.10 FINAL COMPLETION AND FINAL PAYMENT Add the following to this subparagraph 9.10.1: The Architect’s final Certificate of Payment shall establish the date of Final Completion. If the Contractor notifies the Architect that the punch list items are completed and requests an inspection to determine compliance, and the Architect determines that some or all the punch list items are not completed, the Contractor shall be responsible to the Owner for all costs, including Architect’s fees, for any future Architect’s inspections after the first inspection to determine subsequent compliance with the punch list. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY 10.2 SAFETY OF PERSONS AND PROPERTY Add the following new subparagraph 10.2.8: 10.2.8 At all times until final acceptance of the Work, the Contractor shall protect from damage, weather, deterioration, theft, vandalism, and, malicious mischief all materials, equipment, tools, and other items incorporated or to be incorporated in the Work, or consumed or used in the performance of the Work, and all Work in process and completed Work. Replace paragraphs 10.3.3, 10.3.5 and 10.3.6 with 10.3.3a and 10.3.3b: 10.3.3a To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, its officers, officials, employees, agents and volunteers against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10.3.1 and has not been rendered harmless, 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), except to the extent that such damage, loss or expense is due to the fault or negligence of the party seeking indemnity. 10.3.3b To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractor, agents and employees against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10.3.1 and has not been rendered harmless, 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), except to the extent that such damage, loss or expense is due to the fault or negligence of the party seeking indemnity. City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 14 ARTICLE 11 INSURANCE 11.1 CONTRACTOR’S LIABILITY INSURANCE Add the following new subparagraphs 11.1.1.9 and 11.1.1.10: 11.1.1.9 Liability Insurance shall include all major divisions of coverage and be on a comprehensive basis including: 1. Premises operations (including X, C and U coverage's as applicable). 2. Independent Contractors' Protective. 3. Products and Completed Operations. 4. Personal Injury Liability with Employment Exclusion deleted. 5. Contractual, including specified provision for Contractor's obligation under Paragraph 3.18. 6. Owned, non-owned and hired motor vehicles. 7. Broad Form Property Damage including Completed Operations. 11.1.1.10 If the General Liability coverage's are provided by a Commercial General Liability Policy on a claims-made basis, the policy date or Retroactive Date shall predate the Contract; the termination date of the policy or applicable extended reporting period shall be no earlier than the termination date of coverages required to be maintained after final payment, certified in accordance with Subparagraph 9.10.2. Add the following subparagraph 11.1.2.1: 11.1.2.1 The insurance required by Subparagraph 11.1.1 shall be written for not less than the following limits, or greater if required by law: 1. Worker's Compensation: a. State: Statutory b. Applicable Federal: Statutory c. Employer's Liability $100,000 per Accident 2. Comprehensive or Commercial General Liability (including Premises-operations; Independent Contractors' Protective; Products and Completed Operations; Broad Form Property Damage): a. Bodily Injury: $1,000,000 Each Occurrence $2,000,000 Aggregate b. Property Damage: $1,000,000 Each Occurrence $2,000,000 Aggregate c. Products and Completed Operations to be maintained for a minimum period of 3 years after final payment. d. Property Damage Liability insurance shall provide Explosion, Collapse, and Underground coverage. e. Broad Form Property Damage Coverage shall include Completed Operations. 3. Contractual Liability: a. Bodily Injury: City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 15 $1,000,000 Each Occurrence $2,000,000 Aggregate b. Property Damage: $1,000,000 Each Occurrence $2,000,000 Aggregate 4. Personal Injury, with Employment Exclusion deleted: $2,000,000 Aggregate 5. Business Auto Liability (including owned, non-owned and hired vehicles): a. Bodily Injury: $1,000,000 Each Person $1,000,000 Each Occurrence b. Property Damage: $1,000,000 Each Occurrence Add the following subparagraphs 11.1.3.1 through 11.1.3.5: 11.1.3.1 The certificate of insurance shall name the Owner as "Additional Insured.” Certificate is required at time contract is signed. 11.1.3.2 The Contractor shall provide an original of the executed insurance policy Endorsement to the Owner prior to commencement of the work. 11.1.3.3 Upon request of the Owner, the Contractor shall provide complete, certified copies of all required insurance polices. 11.1.3.4 All insurance policies except Workers’ Compensation shall specify that the insurance provided by the Contractor will be primary and non-contributory to any other insurance available to the Owner. 11.1.3.5 To the extent allowed by law, the Contractor agrees to waive all rights of subrogation to recover damages caused by any claim arising from Work performed by or on behalf of the Contractor under the Contract covered by insurance obtained pursuant to this Section 11.1. Endorsements shall be provided with certificates of insurance. 11.3 PROPERTY INSURANCE Paragraph 11.3.1 in the first sentence change from “the Owner shall purchase and maintain…” to read “the Contractor shall purchase and maintain…” Delete subparagragh 11.3.1.2. Paragraph 11.3.1.3 in the first sentence change from “the Owner shall pay” to read “the Contractor shall pay…” Paragraph 11.3.2 in the first sentence change from “the Owner shall purchase and maintain…” to read “the Contractor shall purchase and maintain…” City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 16 Delete paragraphs 11.3.3, 1.3.4 and 1.3.5. Delete paragraphs 11.3.4 and 11.3.5 and replace with the following: 11.3.4 All insurance policies except Workers’ Compensation shall specify that the insurance provided by the Contractor will be primary and non-contributory to any other insurance available to the Owner. 11.3.5 To the extent allowed by law, the Contractor agrees to waive all rights of subrogation to recover damages caused by any claim arising from Work performed by or on behalf of the Contractor under the Contract covered by insurance obtained pursuant to this Section 11.1. Endorsements shall be provided with certificates of insurance. Delete Paragraph 11.3.6 and substitute the following: 11.3.6 Before an exposure to loss may occur, the Contractor shall file with the Owner a copy of each policy that includes insurance coverages required by this Section 11.3. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days’ prior written notice has been given to the Owner. 11.3.7 At the end of the first sentence, revise “Owner as fiduciary” to “Contractor as fiduciary.” Delete paragraphs 11.3.8, 11.3.9, and 11.3.10 in their entirety. 11.4 PERFORMANCE AND PAYMENT BONDS Delete Subparagraph 11.4.1 and substitute the following: 11.4.1 The Contractor shall provide bonds covering faithful performance of the Contract and payment of obligations arising thereunder. Bonds may be obtained through the Contractor's usual source and the cost thereof shall be included in the Contract Sum. The amount of each bond shall be equal 100 percent of the Contract Sum including all change orders and sales tax. Add the following new subparagraphs: 11.4.1.1 The Contractor shall deliver the required bonds to the Owner no later than ten days following the Notice of Award and shall also be submitted with the signed and executed contract. 11.4.1.2 Bonds shall be obtained from companies holding certificates of authority as acceptable sureties pursuant to 31 CFR part 223. 11.4.1.3 Provide bonds executed by surety company or companies authorized to transact business in State in which the project is being constructed. Required form: Performance Bond and Payment Bond AIA-A312, March 1984. Bonding company as approved by Owner. 11.4.1.4 Provide originals of the executed bonds to the Owner, complete with original ink signatures and original stamps/embossing. 11.4.1.5 Provide proof of bond rider adjustments in the bond sum for Change Orders in conjunction with requests for progress payments. City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 17 Add the following paragraph 11.5: 11.5 INDEMNITY AND HOLD HARMLESS 11.5.1 The Contractor agrees to defend, indemnify and save harmless the Owner, Architect, and their agents, and employees against any and all loss, damage, liability, claims, demands or costs resulting from injury or harm to persons or property (including, with limitation, the Contractor's employees or property) arising out of or in any way connected with Contractor's performance hereof, excepting only such injury or harm as may have been caused solely by the fault or negligence of the Owner, Architect, and their agents, and employees, and shall be deemed to include those of subcontractors. 11.5.1.1 The Owner’s inspection or acceptance of any of Contractor’s work when completed shall not be grounds to avoid any of these covenants of indemnification. 11.5.1.2 Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the Owner, its officials, employees, agents and volunteers, the Contractor’s liability hereunder shall be only to the extent of the Contractor’s negligence. 11.5.2 IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. 11.5.3 The provisions of Section 11.5 shall survive the expiration or termination of this Agreement. ARTICLE 13 MISCELLANEOUS PROVISIONS 13.5 TESTS AND INSPECTIONS Add the following new subparagraph: 13.5.7 No acceptance by the Owner of any Work shall be construed to result from any inspection, tests or failures to inspect by the Owner, the Owner’s representative, the Architect or any other person. No inspection, test, failure to inspect or test, or failure to discover any defect or non conformity by the Owner, the Owner’s representative, the Architect or any other person shall relieve the Contractor of its responsibility for meeting the requirements of the Contract Documents or impair the Owner’s right to reject defective or nonconforming items or right to avail itself of any other remedy to which the Owner may be entitled, notwithstanding the Owner’s knowledge of the defect or nonconformity, its substantially or the ease of discovery. Paragraph 13.7, Time Limit on Claims: in the first sentence, delete “. . .but in any case not more than 10 years after the date of Substantial Completion of the Work.” Add the following new paragraphs 13.8 through 13.8.1.2: 13.8 EQUAL OPPORTUNITY City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 18 13.8.1 The Contractor shall maintain policies of employment as follows: 13.8.1.1 The Contractor and the Contractor's Subcontractors shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, marital status, physical and mental disabilities, or national origin. The Contractor shall take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, religion, color, sex, sexual orientation, marital status, physical and mental disabilities, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth policies of nondiscrimination. 13.8.1.2 The Contractor and the Contractor's Subcontractors shall, in all solicitations or advertisements for employees placed by them or on their behalf, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, sexual orientation, marital status, physical and mental disabilities, or national origin. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT 14.2 TERMINATION BY THE OWNER FOR CAUSE Change subparagraph 14.2.1 to read: 14.2.1 The Owner may, upon seven days’ written notice to the Contractor, terminate (without prejudice to any right or remedy of the Owner) the whole or any portion of the Work for cause, including the following circumstances: 1. the Contractor fails to prosecute the Work or any portion thereof with sufficient diligence to ensure the Substantial Completion of the Work within the Contract Time; 2. the Contractor is in material default of any provision of the Contract; 3. the Contractor is adjudged bankrupt, makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of its insolvency; 4. the Contractor fails to supply a sufficient number of properly skilled workers or proper materials; 5. the Contractor fails to make prompt payment due to Subcontractors or for materials or labor; 6. the Contractor disregards laws, ordinances, rules, regulations or orders of any public authority having jurisdiction; or 7. the Contractor materially breaches any provision of the Contract Documents. Add the following new subparagraph: 14.2.5 If the Owner terminates in whole or part the Work pursuant to paragraph 14.2, the Owner may procure, upon such terms and in such manner as it deems appropriate, supplies or services similar to those terminated, and the Contractor shall be liable to the Owner for any excess costs for such similar supplies or services. The Contractor shall continue to perform of this Contract to the extent not terminated hereunder. ARTICLE 15 ADMINISTRATION OF THE CONTRACT Delete Article 15 in its entirety and replace with the following: City of Bremerton Bremerton, Washington Kitsap Conference Center Expansion September 6, 2013 Issued: Addendum 01 - September 16, 2013 SUPPLEMENTAL CONDITIONS 007300 - 19 15.1 CLAIMS. The Contractor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims. Any claim for damages, additional payment for any reason, or extension of time, whether under this agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement; or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Contractor knew, or should have known, of the facts giving rise to the claim. At a minimum, a Contractor’s written claim must include the information set forth regarding protests in Section 7.A.2.a.-e. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. Contractor must, in any event, file any claim or bring any suit arising from or connected with this agreement within 120 calendar days from the date the contract work is complete. 15.2 GOVERNING LAW. This agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the City and Contractor under any of the provisions of this agreement, resolution of that dispute shall be available only through the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington. 15.3 ATTORNEY’S FEES. To the extend not inconsistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties’ performance of this agreement, each party shall be responsible for payment of its own legal costs and attorney’s fees incurred in defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the City’s right to indemnification under Section 11.5 of the Supplemental Conditions herein. 15.4 WARRANTY. The Contractor shall correct all defects in workmanship and materials within one year from the date of the Contractor’s acceptance of the City’s final payment under this contract. When defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. END OF SECTION AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Contract Award to ThyssenKrupp Elevator Americas for Elevator Improvements related to the Kitsap Conference Center Expansion Project Study Session Date: October 9, 2013 COUNCIL MEETING Date: October 16, 2013 Department: PW&U Presenter: Martin Phone: X 5758 SUMMARY: Sealed proposals were solicited for elevator improvements related to the Kitsap Conference Center Expansion project Wednesday, August 21, 2013. Proposals were opened at 2:00 p.m. Friday, September 13, 2013. One proposal was received, from ThyssenKrupp Elevators Americas. ThyssenKrupp’s proposal provided several options. Kitsap Transit has selected the option to install new and improved constant-speed hydraulic control valves and improved hydraulic fluid, which will provide faster, consistent leveling. This option costs $103,444.76, including tax. This contract will implement the option chosen. ATTACHMENTS: Proposed Contract FISCAL IMPACTS (Include Budgeted Amount): $200,000 has been budgeted for elevator and building system improvements. The project budget provides $118,445 for elevator improvements (including $15,000 to modernize the interior of the elevators), leaving an additional $81,555 to apply to the Conference Center expansion project. STUDY SESSION AGENDA: ☐ No Discussion ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☒ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to enter into a contract with ThyssenKrupp Elevator Americas for $103,444.76, including tax, for elevator improvements related to the Kitsap Conference Center Expansion Project, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 11/02/12 PUBLIC WORKS AGREEMENT – Page 1 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) PUBLIC WORKS AGREEMENT THIS AGREEMENT, is entered into between the City of Bremerton, a Washington Municipal Corporation (“City”), and ThyssenKrupp Elevator Americas (“Contractor”), whose mailing address is 2021 130th Avenue NE, Bellevue, WA 98005. The parties agree as follows: 1. CONTRACTOR SERVICES. The Contractor shall perform the following services for the City: Elevator Retrofit for the Kitsap Regional Conference Center. Retrofitted elevators will meet or exceed the following performance criteria, outlined below and further defined in Appendix C of the Request for Proposals, Elevator Retrofit for the Kitsap Regional Conference Center, issued August 21, 2013:  Speed: 200 feet per minute, plus or minus 3%  Flight time: 12.5 seconds  Door opening time: 1.6 seconds  Door closing time: 2.4 seconds  Leveling: 1/8 inch 2. TIME OF COMPLETION. Contractor shall complete the work by March 14, 2014. 3. COMPENSATION. The City shall pay the Contractor the total amount of $95,253, plus any applicable Washington State Sales Tax, for the work and services contemplated in this agreement. The Contractor shall invoice the City monthly. The City will pay for the portion of the work described in the invoice that has been completed by the Contractor and approved by the City. The City payment shall not constitute a waiver of the City’s right to final inspection and acceptance of the project. A. Performance Bond. Pursuant to Chapter 39.08 RCW, the Contractor, shall provide the City a performance bond for the full contract amount to be in effect until sixty (60) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor and Industries and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. B. Retainage. The City shall hold back a retainage in the amount of five percent (5%) of any and all payments made to contractor for a period of sixty (60) days after the date of final acceptance, or until receipt of all necessary releases from the State Department of Revenue and the State Department of Labor & Industries and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. PUBLIC WORKS AGREEMENT – Page 2 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) C. Defective or Unauthorized Work. The City reserves its right to withhold payment from Contractor for any defective or unauthorized work. Defective or unauthorized work includes, without limitation: work and materials that do not conform to the requirements of this agreement; and extra work and materials furnished without the City’s written approval. If Contractor is unable, for any reason, to satisfactorily complete any portion of the work, the City may complete the work by contract or otherwise, and Contractor shall be liable to the City for any additional costs incurred by the City. “Additional costs” shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Contract price specified above. The City further reserves its right to deduct the cost to complete the Contract work, including any Additional Costs, from any and all amounts due or to become due the Contractor. D. Final Payment: Waiver of Claims. THE ACCEPTANCE OF FINAL PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS MADE. 4. INDEPENDENT CONTRACTOR. Contractor is and shall be at all times acting as an independent contractor and not as an employee of the City. The Contractor shall secure at its expense, and shall be responsible for all payments of income tax, social security, state industrial insurance compensation, unemployment compensation, and all other payroll deductions for the Contractor, officer, agents, employees and sub-contractors. The Contractor shall also secure all applicable business licenses, if required, in connection with the contract services, including all required licenses for Contractor's officers, agents, employees and sub - contractors. 5. TERMINATION. The City may terminate this agreement without notice for good cause. “Good cause” shall include, without limitation, any one or more of the following events: A. The Contractor’s failure to supply sufficient skilled workers or suitable materials or equipment. B. The Contractor’s failure to prosecute the work with such diligence as will ensure its physical completion within the original physical completion time specified in this Agreement and any extensions of time which may have been granted to the Contractor by change order or otherwise. C. The Contractor’s failure to make full and prompt payment to subcontractors or for material or labor. PUBLIC WORKS AGREEMENT – Page 3 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) D. The Contractor’s disregard of federal, state or local laws, rules or regulations. E. The Contractor’s filing for bankruptcy or becoming adjudged bankrupt. F. The Contractor disregards the authority of the City. G. The Contractor performs work which deviates from the Contract, and neglects or refuses to correct rejected work. H. The Contractor’s failure to provide continuous competent supervision. I. The Contractor otherwise violates in any material way any provisions or requirements of the contract. If the City terminates this agreement for good cause, the Contractor shall not receive any monies due under this agreement, if any, until the Contract work is completed. 6. PREVAILING WAGES. Contractor shall file a “Statement of Intent to Pay Prevailing Wages,” with the State of Washington Department of Labor & Industries prior to commencing the Contract work. Contractor shall pay prevailing wages and comply with Chapter 39.12 of the Revised Code of Washington, as well as any other applicable prevailing wage rate provisions. The latest prevailing wage rate revision issued by the Department of Labor and Industries is attached. 7. CHANGES. The City may issue a written or oral work change directive for any change in the Contract work during the performance of this agreement. If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the City’s project manager within two (2) business days of the date the Contractor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Contractor’s costs or time for performance, the City will make an equitable adjustment. The City will attempt, i n good faith, to reach agreement with the Contractor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed with the change order work upon receiving either a written or oral work change directive from the City or a change order from the City. If the Contractor fails to require a change order within the time allowed, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment the Contractor must complete the change order work; however, the Contractor may elect to protest the adjustment as provided below: A. Procedure and Protest by the Contractor. If the Contractor disagrees with anything required by a written work change directive, oral work change directive or change order, including any direction, instruction, interpretation, or determination by the City, the Contractor shall: PUBLIC WORKS AGREEMENT – Page 4 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) 1. Give a signed written notice of protest to the City within one business day; 2. Supplement the written protest within five (5) calendar days with a written statement that provides the following information: a. The date of the Contract’s protest. b. The nature and circumstances that caused the protest. c. The provisions in this agreement that support the protest. d. The estimated dollar cost, if any, of the protested work and how that estimate was determined. e. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. The Contractor shall keep complete records of extra costs and time incurred as a result of the protested work. The City shall have access to any of the Contractor’s records needed for evaluating the protest. 3. The City will evaluate all protests, provided the procedures in this section are followed. If the City determines that a protest is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. B. Contractor’s Duty to Complete Protested Work. In spite of any protest, the Contractor shall proceed promptly with the work as the City has ordered. C. Contractor’s Acceptance of Changes. The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. A change order that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Contractor completely waives any claims PUBLIC WORKS AGREEMENT – Page 5 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) for protested work and accepts form the City any written or oral order (including directions, instructions, interpretations, and determination). 8. CLAIMS. The Contractor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims. Any claim for damages, additional payment for any reason, or extension of time, whether under this agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this agreement; or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Contractor knew, or should have known, of the facts giving rise to the claim. At a minimum, a Contractor’s written claim must include the information set forth regarding protests in Section 7.A.2.a.-e. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. Contractor must, in any event, file any claim or bring any suit arising from or connected with this agreement within 120 calendar days from the date the contract work is complete. 9. WARRANTY. The Contractor shall correct all defects in workmanship and materials within one year from the date of the Contractor’s acceptance of the City’s final payment under this contract. When defects are corrected, the warranty for that portion of the work shall extend for one year form the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 10. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees, arising out of or in connection with the performance of this agreement, except for injuries and damages solely caused by the City’s negligence. The City’s inspection or acceptance of any of Contractor’s work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officials, employees, agents and volunteers, the Contractor’s liability hereunder shall be only to the extent of the Contractor’s negligence. PUBLIC WORKS AGREEMENT – Page 6 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS INDEMNIFICATION CONSTITUTES THE CONTRACTOR’S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSE OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this agreement. 11. INSURANCE. The Contractor shall procure and maintain for the duration of this agreement, insurance against claims for injuries to persons or damage to property that ma y arise from or in connection with the performance of the Contract work by the Contractor, its agents, representatives, employees or subcontractors. Before beginning the work on the project described in this agreement, the Contractor shall provide a Certificate of Insurance evidencing: A. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and B. Commercial General Liability insurance written on an occurrence basis with limits no less than $2,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer’s liability. Any payment of deductible or self insured retention shall be the sole responsibility of the Contractor. The City reserves the right to receive a certified copy of all the required insurance policies. The City, its officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of the Contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The Contractor’s insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer’s liability. The Contractor’s insurance shall be primary insurance as respects the City, and the City shall be given thirty (30) calendar days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. PUBLIC WORKS AGREEMENT – Page 7 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) If this contract requires work to be performed in or on navigable waters, the Contractor shall provide insurance written on an occurrence basis with limits no less than $2,000,000 combined single limit per occurrence and $2,000,000 aggregate for claims made under the Longshoreman and Harbor Workers Act and the Jones Act. 12. MISCELLANEOUS. A. Nondiscrimination. In the hiring of employees for the performance of work under this Agreement or any sub-contract hereunder, the Contractor, its sub-contractors, or any person acting on behalf of such Contractor or sub-contractor shall not, by reason of race, religion, color, sex, national origin, or the presence of any sensory, mental, physical disability, or sexual orientation discriminate against any person who is qualified and available to perform the work to which the employment relates. B. Compliance with Laws. Contractor shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this agreement. C. Work Performed at Contractor’s Risk. Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this agreement. All work shall be done at Contractor’s own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. D. Nonwaiver of Breach. The failure of the City to insist upon strict performance of any of the terms and rights contained herein, or to exercise any option herein conferred in one or more instances, shall not be constructed to be a waiver or relinquishment of those terms and rights and they shall remain in full force and effect E. Governing Law. This agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the City and Contractor under any of the provisions of this agreement, resolution of that dispute shall be available only through the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington. F. Attorney’s Fees. To the extent not inconsistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties’ performance of this agreement, each party shall be responsible for payment of its own legal costs and attorney’s fees incurred in defending or bringing such PUBLIC WORKS AGREEMENT – Page 8 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) claim or lawsuit; however, nothing in this subsection shall limit the City’s right to indemnification under Section 10 of this agreement. G. Written Notice. All communications regarding this agreement shall be sent to the parties at the addresses listed on the signature page of this agreement, unless otherwise notified. Any written notice shall become effective upon delivery, but in any event three (3) calendar days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated on this agreement. H. Assignment. Any assignment of this agreement by the Contractor without the written consent of the City shall be void. I. Modification. No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Contractor. J. Severability. If any one or more sections, sub-sections, or sentences of this agreement are held to be unconstitutional or invalid, that decision shall not affect the validity of the remaining portion of this agreement and the remainder shall remain in full force and effect. K. Entire Agreement. The written provisions and terms of this agreement, together with any attached Exhibits, supersede all prior verbal statements by any representative of the City, and those statements shall not be construed as forming a part of or altering in any manner this agreement. This agreement and any attached Exhibits contain the entire agreement between the parties. Should any language in any Exhibit to this agreement conflict with any language contained in this agreement, the terms of this agreement shall prevail. IN WITNESS WHEREOF, the parties below have executed this agreement. CONTRACTOR THE CITY OF BREMERTON Print Name: Print Name: Title: Title: DATE DATE Notices to be sent to: Notices to be sent to: CONTRACTOR: CITY OF BREMERTON: PUBLIC WORKS AGREEMENT – Page 9 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) ______________________________ ______________________________ Bremerton, WA 98337 (360) 473-5323; (360) 473-5200 fax PUBLIC WORKS AGREEMENT – Page 10 of 10 (October 11, 2013) (between City of Bremerton and ThyssenKrupp Elevator Americas) APPROVED AS TO FORM: Bremerton City Attorney ATTEST: Bremerton City Clerk R:\LEGAL\Contracts\FORMS\ShortForm.PW.Agr.doc PREVAILING WAGES http://www.lni.wa.gov/TradesLicensing/PrevWage/default.asp AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: Professional Services Agreement with RiceFergusMiller Architects for Construction Administration of the Kitsap Conference Center Expansion Project Study Session Date: October 9, 2013 COUNCIL MEETING Date: October 16, 2013 Department: Public Works Presenter: Martin Phone: 5758 SUMMARY: This contract with RiceFergusMiller Architects is to provide construction administration services for the Kitsap Conference Center Expansion Project. Staff recommends the construction administration service be provided by RFM because of this firm’s substantial knowledge and experience with the project, including concept development, design work, and assembly of the bid package. ATTACHMENTS: Proposed contract FISCAL IMPACTS (Include Budgeted Amount): $30,000 within the project budget has been allocated for construction administration services. STUDY SESSION AGENDA: ☐ No Presentation ☒ Full Presentation STUDY SESSION ACTION: ☐ Consent Agenda ☒ General Business ☐ Public Hearing RECOMMENDED MOTION: Move to authorize a professional services agreement with RiceFergusMiller Architects for construction administration services for the Kitsap Conference Center Expansion Project, and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: Approve Deny Table Continue No Action Form Updated 01/25/13 Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project – Construction Administration Services Page 1 of 8 PROFESSIONAL SERVICES AGREEMENT Kitsap Conference Center Expansion Project – Construction Administration Services The City of Bremerton (“City”) and Rice Fergus Miller Architects (“Consultant”), referred to collectively as the “Parties,” enter into the following Agreement for professional services: I. Scope of Work: The Consultant agrees to perform the services described as follows: Construction administration services for the Kitsap Conference Center Expansion Project II. Term: The City and the Consultant agree that work will begin immediately upon execution of this Agreement, and continue for the duration of the Kitsap Conference Center Expansion Project, anticipated to be completed by March 31, 2013; provided however, that additional time shall be granted by the City for excusable delays or extra work as provided for in Section IX.A of this agreement. III. Compensation: In consideration of the services provided pursuant to this Agreement, the City shall pay Consultant in an amount not to exceed $30,000, excluding any applicable sales tax. The Consultant shall submit regular billing statements detailing work performed and amount charged on each task or portion thereof. The descriptions shall conform to and fall within the categories set out in the Scope of Work and/or Fee Schedule. Upon receipt of a conforming billing statement, the City shall promptly process payment. PROVIDED, HOWEVER, the City reserves the right to prioritize scoped work and accelerate and/or delay work tasks under the time frame set forth in Section II herein. The Consultant's labor rates and billing fees shall be as delineated in Exhibit A. Consultant shall not perform work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensation is modified pursuant to this Agreement. Consultant shall only be compensated for additional services if requested pursuant to Section I and, if not otherwise provided, such compensation shall be in accordance with Exhibit A. If a billing statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance. Such withholding does not relieve Consultant of its obligations under this Agreement. IV. Relationship of Parties: Consultant represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of expertise. Consultant and its personnel are independent Consultants and not employees of the City. Consultant and its personnel have no authority to bind the City or to control the City’s employees and other Consultants. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub -Consultants of the Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project – Construction Administration Services Page 2 of 8 Consultant. Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and sub-Consultants during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent Consultants to perform the same or similar work. As an independent Consultant, Consultant is responsible for its own management. The City’s administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Consultant or its personnel. As an independent Consultant, Consultant is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. These taxes and fees include but are not limited to State industrial insurance, Business & Occupation, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared delinquent, the City may withhold the delinquent amount, plus any additional charges arising from the delinquency, from any payments due Consultant. V. Indemnification: Architects, Engineers and Any Other Professional Listed In and Performing Services Defined in RCW 4.24.115: Should a court of competent jurisdiction determine that Consultant’s services provided pursuant to this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the ext ent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. VI. Insurance: The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees, sub-consultants or sub-Consultants. Before beginning work on the project described in this Agreement, the Consultant shall provide a Certificate of Insurance evidencing: 1. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project – Construction Administration Services Page 3 of 8 personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability; and 3. Excess Liability insurance with limits not less than 1,000,000 limit per occurrence and aggregate. 4. Professional Liability insurance with limits no less than $1,000,000 limit per occurrence/claim. Any payment of deductible or self insured retention shall be the sole responsibil ity of the Consultant. All required policies shall be provided on an “occurrence” basis except professional liability insurance (if required), which may be provided on a “claims-made” basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Consultant and a copy of an endorsement that is acceptable to the City, which names the City as an additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies and endorsements. The City further reserves the right to reject any unacceptable policies and/or endorsements. The Consultant's Commercial General Liabilit y insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. The Consultant's insurance shall be primary insurance as respects the City and it shall be an affirmative obligation upon Consultant to advise the City’s Risk Manager by fax at (360) 473- 5161, or by certified mail, return receipt requested to City of Bremerton, attn: Risk Management, 345 6th Street, Suite 600, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change of any insurance policy set out herein, and failure to do so shall be construed to be a breach of this Agreement. The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. VII. General Conditions: A. Reports and Information: When requested by the City, Consultant shall furnish periodic reports and documents on matters covered by this Agreement. The reports and documents shall be furnished in the time and form requested. Consultant shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed amounts. Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project – Construction Administration Services Page 4 of 8 B. Ownership and Use of Records and Documents: Original documents, drawings, designs and reports, including those in electronic format, developed under this Agreement are the property of the City. All written information submitted by the City to the Consultant in connection with the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like information relating to its own business. If such information is publicly available or is already in Consultant's possession or known to it, or is rightfully obtained by the Consultant from third parties, Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise. All data, documents and files created by Consultant under this Agreement may be stored at Consultant's office in Bremerton, Washington. Consultant shall make such data, documents, and files available to the City upon its request at all reasonable times for the purpose of editing, modifying and updating as necessary until such time as the City is capable of storing such information in the City's offices. Duplicate copies of this information shall be provided to the City upon its request, and at reasonable cost. All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by Consultant pursuant to this Agreement, are instruments of service with respect to the project and are the property of the City. Any reuse by the City for other than the specific purpose intended will be at City’s sole risk. C. Work Performed at Consultant's Risk: Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub-consultants in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. D. Place of Work: The Consultant shall perform the work authorized under this Agreement at its offices in Bremerton, Washington. Meetings with the City staff as described in Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually agreed upon by the parties. E. Entire Agreement: This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement. F. Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. G. Modification: This Agreement may only be modified by written instrument signed by both Parties. H. Written Notices: All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1st class mail, or by personal service, Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project – Construction Administration Services Page 5 of 8 and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. City Address Consultant Address 100 Oyster Bay Avenue N. 275 Fifth Street, Suite 100 Bremerton, WA 98312 Bremerton, Washington 98337 I. Waiver: Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power. J. Non-Waiver of Breach: The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect. K. Compliance with Laws: Consultant shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. L. Choice of Law and Venue: This Agreement shall be interpreted according to the laws of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court. M. Attorneys’ Fees: In the event of litigation to enforce any of the terms or provisions herein, each party shall pay all its own costs and attorney’s fees. N. Assignment: Any assignment of this agreement by the Contractor without the written consent of the City shall be void. VIII. Nondiscrimination: Consultant shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, disability, or sexual orientation except for employment actions based on bona fide occupational qualification. IX. Termination: This Agreement shall remain in force until completion and acceptance of the services, terminated by written instrument upon mutual consent, or by the City of Bremerton for convenience. This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the terminating Party, and the non- performing Party does not commence correction of the failure of performance within thirty (30) days of the terminating Party’s sending notice to the non-performing Party. Any Notice by Consultant shall include a report showing the status of all items listed in the Scope of Work current through the termination date. If the City receives reimbursement by any federal, state, or other source for work described in Section I herein, and that funding is withdrawn, reduced or limited in any way, or the project is Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project – Construction Administration Services Page 6 of 8 cancelled or substantially reduced after the execution date of this Agreement and prior to the completion of the work, the City may summarily terminate this Agreement. A. Excusable Delays: The right of Consultant to proceed shall not be terminated nor shall Consultant be charged with liquidated damages for any delays in the completion of the work due to: 1) any acts of the federal government in controlling, restricting, or requisitioning materials, equipment, tools, or labor by reason of war, national defense, or other national emergency; 2) any acts of the City, its consultants, or other public agencies causing such delay; and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity. PROVIDED, HOWEVER, that the Consultant must promptly notify the City within ten (10) calendar days in writing of the cause of the delay. If, on the basis of the facts and the terms of this Agreement, the delay is properly excusable, the City shall, in writing, extend the time for completing the work for a period of time commensurate with the period of excusable delay. B. Rights Upon Termination: In the event of termination, the City shall pay for all services performed by the Consultant to the effective date of termination, as described on a final invoice submitted to the City. After termination, the City may take possession of all records and data within the Consultant's possession pertaining to this project which may be used by the City without restriction. Any such use not related to the project which Consultant was contracted to perform shall be without liability or legal exposure to the Consultant. X. Suspension & Debarment. For contracts involving Federal funding, Consultant hereby certifies, by signing this agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Consultant shall provide immediate written notice to the City if at any time it learns that it is or has become ineligible for certification. Should Consultant enter into a covered transaction with another firm, Consultant agrees by signing this agreement that it will verify that the firm with whom it intends to do business is not debarred, suspended, ineligible, excluded or disqualified. Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project – Construction Administration Services Page 7 of 8 CITY OF BREMERTON CONSULTANT By: By: its: its: Date:____________________ Date:____________________ Approved as to form: Attest: ______________________ ________________________ Bremerton City Attorney City Clerk Bremerton/Rice Fergus Miller Kitsap Conference Center Expansion Project – Construction Administration Services Page 8 of 8 Exhibit A Labor Rates and Billing Fees Rice Fergus Miller 16 October 2013 Senior Principal in Charge: $ 220.00 Project Manager: $ 130.00 - $ 170.00 Project Architect: $ 95.00 - $ 170.00 Technical Designer / Production Support: $ 80.00 - $ 130.00 Interior Designer: $ 75.00 - $ 130.00 Marketing Staff: $ 65.00 - $ 100.00 Project Coordinator: $ 80.00 Administrative Staff: $ 65.00 - $ 100.00 Graphics Visualization Staff: $ 80.00 - $ 140.00