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5413
GREENSHIELD SYSTEMS, LLC
Pendergast Field #1 Sports Field Drainage Improvements
Parks
LEG 12-1
9/15/2014
9/30/2014
2015
Comments :
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
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SUBJECT: Study Session Date:
Public Work Agreement with King County COUNCIL MEETING Date:
Directors Association (KCDA) for Department:
Pendergast Field No. 1 Drainage Presenter:
Improvements Phone:
July 23 2014
Aug 6 2014
Parks and Recreation
Wyn Birkenthal
473-5752
SUMMARY In 2013 the City installed sub-surface drainage improvements at Pendergast Regional Park's
Field No. 3. The improvements greatly reduced ponding in the outfield, increased safety for softball players and
decreased the amount of staff time needed to prepare Field No. 3 for league and tournament games following
rainy weather. The attached contract with King County Directors Association (KCDA) will facilitate the
construction of a similar sub-surface drain system at Pendergast Field No. 1. KCDA is a non-profit purchasing
co-op used by municipalities and school districts to obtain volume pricing for goods and services. Bremerton is
a member of KCDA. Greenshield Systems LLC will perform the work under the contract. The tasks include
installation of perforated pipe in sand filled trenches, tie in to a drain that carries water away from the ball field
playing surface and restoration work for the disturbed area.
ATTACHMENTS: 1) Public Work Agreement with KCDA; 2) Attachment A— Greenshield Systems
LLC Quote; and 3) Attachment B— KCDA Contract with Greenshield Systems LLC.
FISCAL IMPACTS (Include Budgeted Amount): $40,000 for the Pendergast Drainage Improvements
is included in the 2014 Parks Capital Budget.
STUDY SESSION AGENDA: ❑x No Presentation ❑ Full Presentation
STUDY SESSION ACTION: 0 Consent Agenda ❑ General Business ❑ Public Hearing
RECOMMENDED MOTION:
Move to approve a Public Work Agreement with KCDA for the Pendergast Park Ball Field No. 1
drainage improvements and authorize the Mayor to finalize and execute the agreement with
substantially the same terms as presented.
COUNCIL ACTION: [`�Approve
❑ Deny ❑ Table ❑ Continue ❑ No Action
Form Updated 01/25/13
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'�his AG1tEElVIE1�1T is made as of the 12�' day of August, 2014, between the public entity C�TX OF
��tEMEI�'�'ON ("C1ienC"), 345 — 6'� Stree4, Sui�e 600, �re�erton, dVA 98337 (address), and the Contractor:
Greetnshie�d Syste�as, LI.C.
This Agreement supplements the King County Directors' Association ("KCDA") Purchase Order
Number 4084860 ("Purchase Order") for the Client.
A general descriptivn of the Project is: Pendergas# Taeld #1 Spoa�ts �eld Drainage Iinprovenaents
The Architect/Engineer ("A/E"), if any, is:
The Client, KCDA, and Contractor agree as set forth below.
�TICLE 1
T� W�1�
1.1 This Agreement provides supplementa.l terms and conditions to the Purchase Order and is
incozporated by reference into the Purchase Order as if set forth in full thereia This Agreement shall be
campleted and executeti for all KCDA projects that include any on-site construetion aetivities. The Contractor
shall fully execute and complete the entire V�ork described in the Contract Documents.
AR'I'ICI,E 2
1)A'�ES OF COli�EI�TCEIi��T'Y' AI�iID S��'�'A1�1'�"IAL, ANI� I`Il��. COIV�PI.ET��PI
2.1 The date of commencement of the Work (the date from wkuch the Contract Time is measwed)
shail be the date established in a notice to proceed issued by the Client, unless a different date is sta.ted below:
2.2 The Contractor sha11 achieve Substantial Complerion of the entire Work no later than
September I 5, 2014 and Final Completion no later than September 30, 2014, subject to adjustments of the
Contract Time as provided in the Contract Documents.
2.3 Liquidated damages, if any, shall be $ 10 0. 0 0 per day for eaeh calendar day after the
Contract Time that Substantial Completion is not aitained, and shall he paid to the Client.
AR'�`ICLE 3
CC91�i'I'id�C'I' Si3IV�
3.1 KCDA shall pay the Contractor for the Contractor's performarice of the Contract the Contract
Sum of Thirtv £our thousand seven hundred azid thirty three Dollars
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�{$34 , 733 . 00 '_), subject to additions and deductions as provided in the Contract Documents. Sales tax is not
inciuded in the Cantract Sum and shall be added to the invoice between the Contractor and KCDA and to the
invoice between KCDA and the Client.
The contract swn has been derived from the contractor's bid to KCDA directly, or to KCDA through the
Association of Educational Purchasing Agencies (AEPA) dated � , and is made up of the following
components:
3.2 The Contract Sum is based upon and includes the following alternates, if any, which are
described in the Contract Documents and are hereby accepted by the Client:
3.3 Unit prices beyond those listed in the Contractor's Bid to KCDA or AEPA, if any, are as follows:
3.4 Allowances, if any, are as follows:
3.5 If this Agreement is for a Project for the Contract Sum of one million dollaxs or more, complete
below the names of the following subcontractors with whom the Contra.ctor will subcontract for perfarmance of
the work:
HVAC (heating, ventilation, and air canditioning)
Plumbing as described in chapter 18.I06 RCW
Electrical as described in chapter 19.28 RCW.
A�t'T�CLE 4
PAYI�I�'I'
4.1 Whenever this Agreement sta.tes that KCDA will rnake payments, the parties agree that payment
from the Client to KCDA is a condition precedent to payment from KCDA to the Contractor and that KCDA
will use such payments from the Client to pay Contractor. KCDA will make payments to the Contractor as
provided below and elsewhere in the Contra.ct Dacuments based upon Application(s} for Payment submitted by
the Contractor and per Article l 5. KCDA will schedule fwal payment, constituting the entire unpaid balance of
the Contract Sum except statutory retainage, to the Contractor when the Work has achieved Final Campletion,
the Agreement has been fully performed, the Client's Board of Directors has accepted the Work, and the Client
has agreed to receive billing from KCDA. The retaina.ge shall be �aid pursuant to RCW 60.28 and the Contract
Documents.
4.2 Payments due and unQaid u.nder the Agreement shall bear interest as specified by RCW 39.76,
not to exceed the Bank of America prime rate plus 2%.
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Alt'TYCL,E 5
PE�VIII'�'S A1011ID I+'EES
5.1 The Client will secure and pay for the cost of any required building permit. The Client shall
secure and pay for necessaay approvals, easemen.ts, assessments and charges required for the use or occupancy
of permanent structures or permanent changes in existing facilities.
5.2 The Contractor shall secure and pay, as a part of the Contra.ct Sum, for a11 other permits and
governmental fees, licenses and inspections necessary for proper execution and completian of the construction
of the Work.
Alt'�'ICLE 6
PitOPER'1'IT INSIJ�IVCE
6.1 The Client shall insure the property in the amount of its insurabte replacement cost, including
additions and alterations, against "all risks" of physical loss. The policies may inure to the benefit of the Client
only. The Contractor is at risk for alI material and equipment not a permanent part of the structure. If the Client
requires in writing that the Contractor procure property insurance it shall be paid for by a Change Order. The
Contractor's insurance requirements are described in Article 17.
6.2 Upon the occurrence of an insured loss, the Client shall have the power to ad}usfi and settle any
loss with the insurers.
AIt'I'ICLE 7
EI+dIJN��tA"I'IOi�i ��' CONT'12ACT I90CU1V�1l1'I'S
The Contract Documents are enumerated as fotlows, except far modifications issued after execution of
this Agreement:
7.1 KCDA Invitation to Bid Nwnber 12-415 or AEPA Invita.tion to Bid Number AEPA
and all of the terms a.nd conditions incorporated therein.
7.2 For �,EPA bids, Washington, King County Direciors' Association (KCDA) Additional Agency
Terms and Conditians as listed in the AEPA Invita.tion to Bid.
7.3
7.4
Conditions.
7.5
KCDA Purchase Order Number 4084860
This executed Agreement between the Client and Contractor, including the attached General
Any Supplementa.ry and other Conditions of the Agreement.
7.6 The Specifications as follows:
Sec�imn 'Tit�e
7.7 The Drawings as follows:
Agreement between Client and Contractor - Washington
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P�es
REV 04292013 zo�zatts_i.poc
lvumiber Title
7.8 The Addenda (if any) as follows:
IrTu�enber Date
7.9 Department of Laboy and Tnduslxies Prevailing Wage Rates;
Couaty: _____
Effective Date: / •- - i
Date
Pa�es
7.14 Any other dacuments forming part of the Contract Documents ar►d iisted below
7'hrs Agreement entered into as of the day and year frrst writter� above.
KING COUNTY Dll2ECTORS' ASSOCIATION
By � �
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(Printed rttime rnrd title)
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CLIENT
B
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Pa Len a or
(Printed title)
Agreement between Clieatt artd Contractor - Washington
Page 4
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Tl�IE CONTRAC'Y' DOC6JR9�1V"d'S
AR'I'ICLE 9
A.lD1i�IiNYS'1'RA'Y'ION ��' TI3E AGIiEEMENT
8.1 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
Document�s are complementary, and what is required by one is
as hircding as if required by all. Performance by the
Contractor is required to the extent consistent with the
Contract Documents and reasonably inferable from them as
being necessary to produce the intended results.
8.2 The Contract Documents shall not be
wnstrued to create a contractual relationship of any kind
between either the Client or KCDA and a Subcontractor of
arry tier, or between. any persons or entities ather than tha
Client, KCDA, and Contractor.
8.3 The term "R7ork" means the construction
and services required by the Contract Docuinents, whether
completed or partia(ly completed, and includes all other labar,
materials, equipment and services provided or to be provided
by the Contractor to fulfill the Contractor's obligations. The
Work may consHtute the whole or a part of the Project.
8.4 The term "A/E" means the entity listed as
such on the first page of this Agreement, if any. The A/E may
be an azchitect, engineering or similar company, or consultant,
and is not necessarity a licensed architect or engineer. If
"None" or "N/A" is listed for the A/E, then the Client or ifis
designated representative will perform all of the functions of
the A/E described herein. The A/E xs not an agent of the
Ctient or KCDA, and is no# suthorized to speak on behalf of or
bind the Client or KCDA.
8.5 The Contractor's execution of the
Agreement is a representatiqn and acknowledgement that the
Contractor has visited the site and become familiar with the
local cond.itions under which the Work is to be performed, that
the Contract Sum. is reasonahle compensation for all the Work,
and that the Contract Time is adequate for the performance of
the Work. The Contxactor's execution of the Agreement is a
further representatian and acimowledgement ti�at the
Contractor has carefully checked and verified all pertinent
flgures and examined the Contract Documents and the Project
site, including any existing structures, and that it has satisfied
itself as to the nature, location, character, quality and quantity
of the Work, the labor, roaterials, equipment, goods, supplies,
work, services and other items to be furnished, and all other
requirements of the Contract Documents, as well as the
surface conditians and other matters thax may be encountered
at the Project site or affect performance of the Work or the
cost or difficulty thereof.
8.6 KCDA is an intended third-party beneficiary
of this Agreement and may enforce all of its terms directly
against the Contractor. Contractor hereby assigns to the Client
all manufacturers' warranli.es.
9.1. 7fie Client, wit.� assistance from the A/E,
will provide administration of the Agreemen� The Client
must approve in writing alI changes in the Contract Surn or
Time and all Change Orders, Construction Change Directives,
and payments to the Contractor.
9.2 No representative of KCDA, the Client, ar
the A/E is authorized to revoke, aiter, enlarge, relax or release
any requirements of lhe Contract Documents, nor to approve
or accept any portion of the Work whether or not executed in
accordance with, nor to issue instrttctions contraYy to the
Conhact Documents. Atl warranties, guarantees, and
certificates shall inure to the benefit of the Cfient.
9.3 The Client or the A/E may disapprove,
condemn or reject work when, in its opinion, the Work does
not confortn W the Contract Documents. 'The Client or the
A/E may require special inspection or testing of any Work in
accordance with the provisions of the Contract Doct►ments
whether or not such Work is then. fabricated, installed or
completed.
9.4 The Client ar the A/E may ca11, schedule
and canduct job meetings, which the Contractor and
representatives of its Subcontractors shall attend, to discuss
such raatters as procedures, progress, problems and
scheduling.
9.5 The Client, KCD.A, and the A/E may visit
the site at intervals each. considers appropriate to the stage of
ttie Work to becflme generally Familiar with the progress and
quality of the completed Work. However, none of them will
be required to make exhausiive or continuotts on-site
inspections to ch.eek the quality or quantity of the Work.
ARTICL� 1 Q
'i7� C�N'TItACTOR
10.1 The Contractor shatl perform, supervise and
direct the Work, using the Contractor's best skill and attention.
The Contractor shall be solely responsible for and have conteol
over construction means, methods, techniques, sequ,ences,
personnet and procedures, for safety, and for coordinating all
portions of the Work under the Agreement. The Contractor
shall be an independent contractor in the performance of the
Work and sha[L have compiete cantrol over and responsibility
for alI personnel performing the Work. 'Fhe Con�actor is not
authorized to enter into any agreements or underta.kings for or
on behalf of KCDA or the Client or to act as or 6e an agent or
emptoyee of KCDA or the Client.
10.2 The Contractor shall provide and pay for all
labor, materials, equipment, tools, consirucrion equipment and
machinery, water, heat, utiiities, tra.nsportation, and other
facilities and services necessary for the proper execution and
Agreement between Ctient and Contractor - Washington 2oizzi �s_t.noC Page 5
completion of the Work, whether temporary or permanent and
whether or not incorporated or to be incorporated in the Work.
]0.3 Workers. T6e Contractor shall enforce
strict discipline and good order among the Contractor's
employees and other persons canrying out the Work. The
Contxactor shall not permit employment of unfit persons or
persons not skilled in tasks assigned to them. The Contractor
shall be responsible to KCDA and the Client for the acts and
omissions of t�e Contraetor's employees, Subconfiactors of
any teer and their agents and employees, and other persons
performing portions of the Work under a contract with the
Contractor. At no change to the Con�aact Sum or Coniract
Tirne, the Client may provide written notice requir.ing the
Contractor to remove from the Work any employee or other
person car�ying oui the Work that the Ctient considers
objectionable. If the Work is being perFormed at a site in
active school use or where there is a likelihood of contact with
children, a person shall be unfit and removed from the site if
he ar she has pled guilty to or has been convicted of any
felony crime involving tkie physical injury or death of a child
(RCW 9A.32 or RCW 9A.36 but not RCW 46.b1—motor
vehicle violation), the physical neglect of a child (RCW
9A.42), sexual offenses against a minor (RCW 9A.44), sexual
exploitat�ion. of a child (RC W 9.b8A), the sale or purchase of a
minor child (RCW 9A.64.030), promoting prostitution of a
child (RCW 9A.88), or violati.on of similar laws of another
jurisdiction. Failure to comply with this section shall be
groun.ds for the immediate termination of this �eement.
10.4 Warranty. The Contractor warrants that
materials and equipment fumished under the Agreement will
be of. gaod quality and new, that the Work will be performed
in a workmanlike manner, free from defects not inherent in the
qua,lity requieed or permitted, and that the Work will conform
to the requirements of the Contract Documents. Work not
confornning to these requirements, inclt�ding substitutioas not
properly approved and authorized, is defective. 1'he
Contractor's warranry excludes remedy for daraage or defect
caused by abuse, modificarions oot executed by the
Contractor, 'vnproper or insufficient maintenance, improper
operation, or normal wear and tear under normal usage.
10.5 Taxes and Fees. In accordance with
Aiti.cle 3, KCDA shail invoice the Client and pay all sales tax.
1fie Con�actor shall pay all other consumer, use, B& O, and
other similar taxes that are legally enacted when bids are
received, whether or not yet effective or merely scheduled to
go into effect.
10.6 H,egal Gompliance. The Contractor shall
compiy with and give notices required by laws, ordinances,
ruies, regulations, and lawful orders of public authorities
bearing on pecforroance of the Work. The Contractor shall
promptly norify KCDA, the Client, and A/E in writing if the
Contractor observes the Drawings and Specifications to be at
variance with them.
10.7 Submittals. 1fie Contractor shall review,
approve and submit to the Client or A/E with reasonahle
promptness Shop Drawings, Product Data, Samples and
Agreement between Cl.ient and. Contractor - Washington
similar submittals required by the Contract Documents. The
Work shall be in accosdance with approved submittals.
10.8 Pragress Schedulc. Within seven days of
execution of this Agreement, the Contractor shall submit a
preliminary schedule of the Work to the Client Failure to do
so shall constitute a material breach of the Contract and a
material breach of the conditions of the bid bond. Withen
thirty days after execution of the Agreement, and before any
progress payment need be made, the Contractor, after
consultations with its Subcontractors, shall submit a Progress
Schedule to the Clien� Neither the Client nor the A/E will,
however, be required to review ar approve the substance or
sequence of the Progress Schedul.e, which are the Contractor's
sole responsibility. Tb.e Contractor will be responsible for
planning, scheduling, managing, and reporting the progress of
the Work in accordance with all of the specific methods and
submittals described in the Contract Documents. Tbe
Contractor shall use the Contract Schedul.e to plan, coordinate,
and prosecute the Work in an orderty and expeditious manner.
10.9 �lean-Up. The Contractor shall keep the
premises and surrounding area free from accumulation of
waste materia.ls or rubbish caused by operations under the
Agreement. Upan completion of Work or at the Client's
request, the Contractor shall remove from and about the
Project waste materials, rubbish, the Contractor's tools,
construction equipment, machinery and surplus materials. If
the Contractor fails to do so, the Client may do sa and charge
to the Contractor alt costs incurred.
10.10 Access. The Contractor shall provide
KCDA, the Client, and the A/E access to the Work wherever
located.
10.11 Royalties and Patents. The Contractor
shall pay all royalties and license fees, shall defend suits or
claims for infringement of patent rights and shall hold KCDA,
the Client, and the A/E harmless from loss on account thereof,
unless the Contract Documents require the particular design,
process or product of a particular manufactarer or
manufacturers.
10.12 Indemnif'ication. Subject to the following
conditions and to the fullest extent permitted by law, the
Contzactor shal! defend, indemnify, and hold harmless KCDA,
the Client, and the A!E and their respective agents, employees,
consultants, suceessors and assigns ("Indemnified Parties")
from and against all claims, damages, losses and expenses,
direct and indirect, or consequential, including but not limited
to costs and attomeys' fees incurred on such claims and in
proving the right to indemnification, arisi.ng out of or resulting
Gom performance of the Work, any act or omission of the
Contractor, its agents, any of its Subcontractors of any tier,
and anyone directly or indirectly employed by the Contractor
or Subcontractors of any tier ("Indemnitor"). The Contractor
will fuliy indemnify the Indemnified Parties for the sole
negligence of the Indemnitor. The Contzactor will indemnify
the indemnified Parties for the cancurrent negligence of the
Indemnitor to the extent of the Indemnitor's negligence. The
Cantractor agrees to being added by KCDA or the Client as a
201221 I S_l .DOC Page 6
party �o any mediation, arbitration, or litigation with third
parties in which KCDA or the Client alleges indemnification
or contribution from an Indemnitor. The Contractor agrees
that ali of its Subcontractors vf any tier will, in the
subcontxacts, similarly stipulate; in tbe event any does not, the
Contractor sha11 be tiable in place of such S�bcontractor(s).
Ta the exient a court or arbitrator stn7ces any portion of this
indemnification provision for any reason, all remaining
pravisions sha11 retain their vitality and effect.
10.13 Prevailing V�ages.
10.13.1 Pursuant to RCW 39.12, no worker, labarer,
or inechanic employed in the performance of any part of this
Agreement shall be paid less than the "prevailing rate of
wage" (in effect as of the date that bids are due) as determined
by the Industrial Statistician of the Department of Labor and
Industries, ESAC Division, PO Box 44540, Otympia, WA
98504-4540, Telephone (360) 902-5335. 'The schedule of the
prevailing wage rates for the locality or localities where this
Work will be perfomned are determined as of the Bid Date for
the county in which the Project is located and are available at
htt�://www.Ini.wa.gov/TradesLicensing/PrevWage/W age
Ra.tes/default.asp and are made a part of Ifiis Ageement by
reference as diough fully set forth herein. A copy is available
for viewing at tfie Client's office, and a hard copy wilt be
mailed upon request. To the extent that there is any
discrepancy between the refereaced schedule of prevailing
wage rates and the published rates as are applicable under
WAC 296-127-011, the published rates shall apply at no
increase to the Contract Sum. The Contractor shall pravide
the respective Subcontractors with a schedule of the applicable
prevailing wage rates. The Industrial Statistician wilt answer
quesrions relating to prevai�ing wage data upon request.
10.13 2 Pursuant to RC W 39.12.060, in case any
dispute arises as to what are the prevailing rates of wages for
work of a similar nature, ared such dispute cannot be adjusted
by the parties in interest, including labor and management
representatives, the matter shall be referred for arbitration to
the director of the Department of Labor and Industries, whose
decision therein shall be final and conclusive and binding on
all parties involved in the dispute.
10.13.3 The Contractor shalt defend, inderanify, and
hotd KCDA and the Client harmless, including attorneys' fees,
from any violation or aUeged violation of RCW 39.t2
("Prevailing Wages on Public Works") or RCW 51
("Indust�ial insurance"), i.ncluding without limitation RCW
51.12.050, by the Contractor or any Subcontractor of any tier.
10.14 The Contractor shall comply with all
applicable provisions af RCW 49.28.
10.15 Pursuant to RCW 49.70 and WAC 29b-62-
454 et seq., the Contractor shall provide KCDA and the Client
copies of and have available at the Project Site a workplace
survey or material safety data sheets for all "hazardous"
chemicals under the control or use of Contractor or any
Subcontractor at ihe 1'roject Site.
Agreement between Ctient and Contractor - Washington
10.16 Contractor shall. maintain and preserve for at
Ieast tbree years from the date of finai payment books, ledgers,
records, documents, estimates, correspondence, logs,
schedules, electronic data and other evidence pertaining to the
costs incurred by the Contractor in connecrian with or related
to the Agreement {"recards") to s�ch extent and in such detail
as will properly reflect and fully support all costs, charges and
other amounts of whatever nature for which reimbursement or
payment is or may be claimed under the Contract. Contractor
agrees to make available at all reasonable times at the office of
the ContracEor all such records for inspecti.on, audit and
reproduction (including electronic reproduction) by KCDA
and the Ctient and their representatives. These requirements
shall. be applicable to each Subcontractor of any tier and
inciuded in each Subcontract and purchase arder issued with
respect to the Work. The Contractor agrees, on behaif of
itself, its representatives, and Subcontractors of any tier and
tt►eir representativas, that any rights under RCW 42.56.070
will commence at Fina! Acceptance, and that the invacation of
such tights at any time by the Contractor or a Subcon�actor af
any tier or their representa.rives shall iniriate an equivalent
right to disclosures from the Contractor and Subcontractors of
any tier f.or the benefit af KCDA and the Client.
ARTYCLE 11
SUBCOI�ITRACTOItS
11.1 A"Subcontractor" is a person or entity that
has a direct contract with the Contractor to perform a portion
of the Work at the site or to supply maierials or equipmen� A
"Subcontractor of any tier" includes Subcontractors as well as
all direct and lower level sub-subconiractors and suppliers.
11.2 As soon as practicable after award of the
Agreement, the Contractor shall confirm in writing to KCDA
and the Client the names of t�e Subcontractors for each
parti�n of the Woek. The Contractor shall not contraet with
any Subcontractor to whom the Client has made reasonable
and timely objection or different from the one listed in
conjunction with the bid. Contracts between the Contractor
and Subcontractors shall (i) require each Subcontractor to be
bound to the Contractor by the terms of the Contract
Documents to the extent of the Work to be performed by the
Subcontractor and to assume toward the Contractor aIl the
obligations and responsibilities which the Contractor, by the
Contract Documents, assumes towazd KCDA and the Client,
and (2) aliow to the Sui�contractar the beuefit of all righrs,
remedies and redress afforded to the Contractor by these
Contrrct Documents.
11.3 The Contractor shall pmmptly pay (and
secure the discharge of any liens asserted by) all persons
properly fumishing labor, eyuipment, materials or other items
in connection with ttte perfomiance of the Work (including,
but not limited to, any Subcontractors). The Contractor shall
furnish ta KCDA and the Client such releases of liens and
claims and other documenes as KCDA or the Client may
request from time to time to evidence such payment (and
discharge). KCDA may, at its opHon, withhold payment, in
whole or in part, to the Contractor unti3 such documents are so
furnished. Th.e Contractor shall defend, ind.emnify, and hold
zoi2zi ts_t.DOC Page 7
. harmless �CCDA �nd the Clieat from any liens, including all
expenses and attorneys' fees. Nothing in the Contract
Documents shall create any obligation on the part of KCDA,
the Client, or A/E to pay or to see to the payment of any
moneys due any Subcontractor of any tier or other person or
entity, except as may otherwise be required by laws and
regulations.
ARTICLE lZ
CONSTRUC"I'ION BY �LIEN'[' OR BY
SEPAItATE CONTItAC'9'ORS
12.1 The Client reserves the right to perform
construction or operations related to the Pmject with the
Client's own forces and to award separa.te contracts in
connection with other portions of the Project or other
construction or operations on the site under condirions of the
contract identical or substantially similar to those of the
Conlract Documents.
12.2 The Contractor shall afford the Client and
separate contractors reasonable opportunity for the
introduction ar►d storage of their materials and equipmenr and
performance of their activ�ties, and shall connect and
coordinate the Contractor's constcuction and operations as
required by tlie Cantract Documents.
AIt'I'ICLE 13
CHANGES IN 'i'I�E WOItK
13.1 The Client, without invalidating the
Agreemen�, may order changes in the Work consisting flf
additions, deletions or modifications ("Changes"), aad the
Contxact Sum and Contract Time wilf be adjusted accordingly.
Changes in the Work, the Contract Sum andlor the Contract
Time shall be authorized only by written Change Order signed
by KCDA, the Client, the A/E and the Contractor or by written
Construction Change Directive signed by the Client and the
A/E.
13.1.1 Chank:e Orders. A Chan�e Ordcr is a
written instrument signed by KCDA, the Client, and the
Contractor stating their ageement upon a change in the Work;
the amount of the adjustment in the Contract Sum, if any; and
the extent of the adji�stment in the Contract Time, if any.
13.1.2 Construction Change Directives. A
Construction Change Directive is a written order prepazed and
sign.ed by the Client and the A/E that directs a change in the
'Work and states a proposed basis for adjusiment, if any, in the
Contract Sum or Contract Time, or both. It shall be used in
the absence of total agreement on the terms of a Change
Order. The Contractor shall promptly proceed witli the
change in the VJork described in the Construction Change
Directive. As soon. as possible, and within seven days of
receipt, ihe Contractor shall advise KCDA and the Client in
writing of the Contractor's agreement or disagreement with the
cost or the method, if any, provided in the CanstrucNon
�hange Directive for determining the proposed adjustment in
ti�►e Contract Sum or Contract Time.
13.2 Changes in the Work shall be priced using
the Contractor's unit prices and/or R.S. Means pricing as
suhmitted in its Bid to KCDA or AEPA. If no such unit prices
are listed for the Changes in the VJork, and if the parties
cannot agree on the cost or credit to KCDA and the Client
from a Change in the Work, the Contractor shall keep and
present, in such form as KCDA or the Client may prescribe, an
itemized accounting together with supporting data. T'he total
cost of any Change or Claim shall be limited to the reasonable
value of the folIowing:
13.2.1 Direct labor costs: The e#�ective
W.D.O.L.&I. prevailing haurly wage for the laborers,
journeymen, and foremen performing and/or directly
supervising the Changed Work on the siie. The premium
portion of overtime wages may not be included unless pre-
approved in writing by the Clien� The hourly cost shall be
based upon basic wages and mandatory fringe benefits and
workers' insurances.
13.2.2 Direct material costs: M itemization af the
quantity of materials necessary to perform the Change in the
Work and the net cost therefar.
13.2.3 Construction �qui�ment usage costs: An
itemization of the actual length of time consiruction
equipment appropriate for the Work will. be used solely on the
Change in the Work at the Site times the lower of the actual
rental receipt or applicable current state, NECA, Data Qttest,
or MCA renta►I cost. Actusi, reasoaable mobilization costs are
petmitied if the equi�ment is brought to the Site solely for the
Change in the Work. The rate for equipment necessarily
standing by for future use on the Work sha11 be Sd% of the
rate established above.
13.2.4 Cost of anv change in insurance or bond
remium. Upon req�est, the Contractor shall provide KCDA
and the Client with supporting doci.mrentation.
13.2.5 Subcontractor costs: Payments the
Contractor makes to SUbcontractors for C;hanged Work
performed by Subcontractors of any Her. The cost of Work
for Subconttactors of any tier shall be determined in the same
manner as prescribed in this Section 13.2.
13.2.6 Fee: Th.e allowance for all com.bined
overbead, profit, and ott�er costs, includ"uag all office, home
office, extended and site overhead (including project manager,
project engineer, superintendent and general foreman time},
and all delay and including impact costs of any kind, added to
the total cost to the Client of any Change Order or any Claim
for additionai work or extra payment of any kind on this
Project shall be caleulated consistent with the provisions of the
KCDA contract. The change order must be signad by both the
Client and Conh•actor.
13.3 D�spate Resolution. All claims, disputes
and other matters in yuesdon of the Contractor, direct or
indirect, arising out of, or relating ta, the Contract Documents
or the breach thereof ("Claims"), except Claims which have
been waived under the terms of the Contract Documents, shall
Agreement between Client and Contractor - Washington 2oi2zi �s_t:�oc Page 8
. be decided exclusively by the following dispute resalation
procedure; claims that have been waived under the terms of
the Contract Documents are not permitted to be brought in any
forum. The Cantractar shall diligently cany on the Work and
maintain the progress schedule during the dispute resolution
procedure, including any lirigation proceedings, unless the
parties mutually agree in. writing otherwise.
133.1 Natice of C.laim The Conh�actor shall
submit notice of all Claims to both KCDA and the Client in
wriring within seven dcrys of the event giving rise to them and
shall include a clear descriptian of the event and its probable
effect.
133.2 Claim Submission. Within 21 days of the
Notice of Claim, the Contractor shall provide both KCDA and
the Client in writing with a Claim, which shall �nciude a clear
description of khe Claim, a(1 changes in cost and in time
(direct, indirect, impact, and otherwise) to which the
Contractor and Subcontractors of any tier aze enritled, and data
snpporting the Claim. The claim of a Swbcontractor may be
brought oniy tfirough �he Conti�actor and only after the
Contractor notifies KCDA and the Client in writing that the
Contractor has reviewed and agrees with the Claim.
13.3.3 lnformal Resolution KCDA and the Client
will make a determination of the Claim. If the Contractor
disagrees with KCDA and the Client's determinafion and
wishes to pursue the Claim further, the Contractor must,
within fourteen days of receipt of the determination, provide
KCDA and the Client with a written request that a
representative of the Contractor, KCDA, and the Client meet,
confer, and attempt to resolve the Ctaim. Tbis meeting wiil
then take place at a mutually convenient rirae within thirty
days of the request, unless the Client elects to proceed d'vrectly
to mediation.
13.3.4 Mecfi$tion. The Contractor may bring no
litigation against the CGent or KCDA unless the Claim is first
subject to non-binding medistion under the Construcrion
Mediation Ruies of the American Arbitrati.on Association
("AAA"). The Contractor is responsible for initiating the
mediation process. This requirement cannot be waived except
by an explicit written waiver signed by KCDA, the Clieut, and
the Contractor. To initiate the mediation process, the
Conlractor shall su6mit a written mediation request to KCDA
and the Ciient within thirty days of the meeting undertaken in
Subparagraph 13.3.3. lf the parties are unable to agee to a
tnediator wit�in thirry dcrys ai�er KCDA and tt�e Client's
receipt of the written request for mediation, any party may
subm.it a request for mediation to the AAA. An officer of the
Contractor and of KCDA and the Superintendent or designee
of the Glient, al.l having fuli authority to settle the Claim, must
aitend the mediation session. To the extent there are other
parties in interest, such as Subcontractors, their
representatives, with fuli authority to settIe the Claim, shail
also atxend the mediation session. Unless KCDA, the Client,
and Cantractor mutualty agree in writing otherwise, ali
unresolved Clarms in the Pro�ect sha11 be considered at a
single mediation session which shall occur prior to Final
Acceptance by the Ciietrt.
Agreement between Client and Contractor - Washington
13.3.5 Litigation. The Contractor may bring no
litigation on Ciaims unless snch Claims have been properly
raised and considered in the dispute resolution procedures of
Subparagcaphs 13.3.1 through 13.3.4 ahove. All unresolved
Claims of the Contractor shall be waived and released imless
the Contractor has strictly complied with the tirne limits of the
Coutract Documents, and litigation is served and �i(ed within
tt�e earlier of (a)120 drrys after the Date of Substantial
Completian as designated in wricing by the Client or (b) 60
days after Final Acceptance. Ttxis requirem.ent cannot be
waived except by an explicit written waiver signed by KCDA,
the Client, and t1�e Confiractor. The pendency of a mediation
(calculated as the period from the written request for
mediation through the day following the mediation
proceeding) shall toll these filing requirements.
13.4 Notices and Claims. All notices and
Claims shall be made in writing as required by the Agreement.
13.4.1 Any norice of a Claim of the Contractor
against KCDA or the Client and any Ciaim of the Contractor,
whether under the Agreement or otherwise, must be made
pursuant to and in strict accordance with the applicable
provisions of the Contract Documents. Failure to comply wit#�
these requirements shall consttt.ute waiver of. the Claim. No
act, omission, or knowledge, achial or constructive, of KCDA,
the Client, or the A/E sl�all in any way be deemed to be a
waiver of the requirement for timeiy written natice and a
timely written Claim. unless KCDA, the Client, and the
Contractor sign an explicit, unequivocal written waiver
approved by KCDA and the Client's Boarci of Directors.
13.4.2 The fact that KCDA, the Client, and the
Contractor may continue to discuss or negotia#e a Claim ti�at
has or may have been defective or tmtimely under the Contract
shall not constitate waiver of the provisions of the Contract
Documents unless KCDA, the Clierrt, and Contractor sigrt an
explicit, unequivocal written waiver approved by the Client's
board of directors.
13.4.3 The Contractor expressly acknowledges and
agrees that the Cantracto�'s failure to timely submit required
notices or timely submit Claims has a subscantial impact upon
and pre,judices KCDA and the Client, including but not limited
to the inability to futly investigate or veri.fy the Claim,
mitigate damages, choose alternative options, adjust the
budget, delete or modify the impacted Work, and/or manitor
fime, cost and quantities. For these and other reasons, the
parties stipulate that KCDA and the Client are prejudiced by
the Contractor's fail.ure to timely submit notices or Claims as
requaed by the Contract Documents.
13.5 Ciatms far Concealed or Unknown
Conditions. If conditions unknown to the Contractor are
encountered at the site which. are (1) coneealed physical
conditions ti�at differ materially fram those indicated in the
Contract Docuznents or (2) unknown physical conditions of an
unusual nature, which differ materiaI3y from those ordinarily
found and generally recognized as inherent in activities of the
character provided for in the Contract DocumenLs, then the
Zoi���s_i.DOC Page 9
Contra+ctor shall give written notice to KCDA and the Clien.t
promptly before conditions are disturbed and in no event later
than seven days after the first observance oa the conditions.
The Contractor shall make any Claim arising from such
condition in accordance with the dispute resalution procedure
in Sabparagraph 13.3.
13.6 Claims for Consequen4ial Damages. The
Coniractor, the Client, and KCDA waive Claims against each
other for consequentia! damages arising out of or relating to
this Contract This mut�al waiver includes without limitation:
.1 damages incurred by KCDA or the Client
for rental. expenses, for losses of use, income, profit,
financing, business and reputa.tion, and for loss of
management or employee productiviry or of the
services of such persons; and
.Z damages incurred by the Contractor for
principal and home office overhead and expenses
inctuding without limitation the compensatian of
personnel stationed there, for Losses of finencing,
business and reputation, for losses on other projects,
for loss of profit, and for interest or financing costs.
This mutual waiver is appIicable to all consequential damages
af any cause, including without limitation dae to either patty's
bermination in accordance with Article 2�. Nothing co.ntained
in this Section 13.6 shall be deemed to precl.ucie an award of
liquidated damages, when applicable, in accordance with the
requirements of the Contract Documents.
13.7 The Contrac[or (inciuding Subcontractors}
shall not in any event be entitied to damages arising out of
actual or alleged loss of efficiency; morale, fatigue, attitude, or
labor rhythm; constructive acceleraiion; home office
overhead; expectant undemm; trade stacking; reassignment of
workers; concurrent operations; dilution of supervision;
learning curve; beneficial or joint occupancy; logistics; ripple;
season change; extended overhead; profit upon damages for
delay; impact damages; or similar damages.
ARTICLE 14
'�'l1VIE
14.1 Within seven days of executing the
Agreement, the Contractor shall deliver any required bond to
the Client with a cnpy to KCDA; no Progress Payments shall
be due until the bond is deiivered.
14.2 if the Contractor is delayed at any time in
progress of the Work by changes ordered "m the Work, by
unanticipated general labor disputes, fire, imusual delay in
deliveries, abnormal adverse weather conditions not
reasonably anticipatable, unavoidable casualties, delays
caused by the Client or its separate contractars, or any causes
beyond the Contractor's control, or by otiter causes which may
,{ustify deiay, then the Contract Time shall be extended by
Change Order to the extent the critical path is affected. The
Contractor (including Subcontractars) shall be entitled to
damages for delay, the total limited to the liquidated rate of
Agreement between Client an.d Contractor - Washington
Subparagraph 2.3, only where KCDA or the Client's own
actions or inactions were the actual, substantial cause of the
delay and where the Contractor could not have reasonably
avoided the delay by the exercise of due diligence. IF a delay
was caused by the Contractor, a Sabconiractor of any tier, or
anyone aeting on behalf of any of them, the Contractor is not
entitled to an increase in the Contract Time or in the Contract
Swn.
14.3 THE TIl�LY COMPLETION OF THIS
PR03ECT IS ESSENTIAL TO KCDA AND THE CLIENT.
KCDA and the Client will incur serious and substantial
damages if Substantial Completion of the Work does not occur
within the Contract Time; however, it may be difficult if not
impossible to determine the amount of such damages.
Consequently, this Agreement may inctude provisions for
liquidated damages. KCDA and the Client's right to
liquidated damages is not affected by partiai completion,
occupancy, or beneficial occupancy. if this Agreement does
not contain an agreed amount for liquidated damages, KCDA
and the Client ma.y prove their actual damages.
ART7CY.E 15
PAYIVJLENTS AND C4MP1,�7'60N
15.1 Progress �'ayments. Payments shall
be made as provided in Articles 3 and 4 of ti�is Ageement. If
Pmgress payments are specified, they will be made monthty
for Work duly approved and performed during the ca.lendar
raonth preceding the application according to the foltowing
procecture.
15.1.1 Draft Application. Within the first five days
of each month, the Contractor shaU submit to KCDA and the
Client, for the Client's approval, a report on the current status
of the Work as compared to the Progress Schedule and a draft
itemized AIA Application for Payment for Work performed
during the prior calendat month. This shall not constitule a
payment request. KCDA or the Client may request the
Coniractor to provide data substanriating the Contractor's right
to payment, such as copies of requisitions or invoices from
Subcontractars.
15.1.2 Pavment Request. The Client shall review
and approve the draft Application for Payment, or state its
reasons for disapproval. Upan the ClienYs approvai, and after
the Contractor has fucnished all data. requested, the Contractor
may submit to KCDA a payment request in the �greed-upon
amount, in the form of a notarized, itemized AIA Applicati.on
for Payment for Work performe�i during the prior calendar
month. KCDA shall ee-verify the amounEs with the Client
and, once verifed and approved by the Client, will invoice the
Client, and KCDA shall make payment to Contractor from
funds received from the Client. Payment from the Client to
KCDA is a condition precedent to payment from KCDA to the
Coniractor. Among other things, the Appli.cation shall state
that prevailing wages have been paid in accordance with the
prefiled statement{s) of intent to pay prevaiiing wages on file
with KCDA and the Client and that all payments due
Subcontractors Gotn KCDA's prior payments have been
made. The submission of this Application constitutes a
zoizzits_t.noc Page 10
certi�cation that the Work is current on the progress schedule,
unless otherwise nated on the Application.. If the Contractor
believes it is entitled to payment for Work performed during
the prior calendar month in addition to the agreed-upon
amount, the Contractor may submit to KCDA a separate
written payment request specifying the exact additianal
amount due, the category in the Schedule of Values in which
the payment is due, t1�e specific Work for which the addirional
amount is due, and why the add.itional payment is due.
15.13 Pavments to Subcontractors. No payment
request shalt inclade amovnts the Contractor does not intend
to pay to a Subcontractor, If, after making a requ�st for
payment but before paying a Subcontractor for its
performance covered by the payment request, the Con.tractor
discovers that part or ail of the payment otherwise due to the
Subcontra.ctar is subject to withholding fi the
Subcontractor for unsatisfactory perFormance, the Contractor
may withhotd the amount as allowed under the subconira.ct,
but it shail give the Sabcontractor and KCDA and the Client
written notice of the remedial actions that must be taken as
saon as practicahte after determining the cause for the
withholding but before the due date for the Subcontractor
payment, and pay the Subcontractor within eight working drrys
after the Subcontractor saxisfactorily eompletes the remedial
action identi€ied in the notice.
15.2 �'revailing Wmges. Pursuant to RCW
34.12, the Contractor wil1 not receive any payment until the
Contractor and a11 Subcontractors have subm.itted a"Statement
of Intent to Pay Prevailing Wage" to KCDA and the Client.
The statement must have the approval of the Industrial
Staristician of th.e Depamnent of Labor and Industries before it
is submitted. to KCDA and the Clien.t. The Contractor and the
respective Subcontractors shalt pay ali fees required by the
Department of Labor and Indusixies, including fees for the
approval of the "Statement of Intent to Pay Prevailin�
Wages:' Approved copies of the "Statement of Intent to Pay
Prevailing �Vages" must be posted where worfcers can easily
read ti�em.
1S3 Progress payments. Unless the Client
informs the Contractor that a payment wili be withheld as
provided in Section 15.4, KCDA shall make progress
payments witlun 30 days of approval of the payment request
by the Client.
15.4 O�Vithheld Payments. Payments may be
withheid on account of (1) defecrive Work not remedied, (2)
ciaims filed by third parties, (3) failure of the Contractor to
make payments properly to Subcontractors or for labor,
materials or equipment or provide releases under
Section 113.1, (4) reasonable evidence that the Work cannot
be comp(eted for the unpaid balance of the Contract Sam, (5)
damage to KCDA, the Client, or another 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 Iiquidated damages for the
ar�ticipated delay, or (7) failure to carry out the Work in
accordance with the Contract Documents. When KCDA
mtends to withlnold atl or part of a payment for any of the
foregoing reasoas, KCDA will provide the Contractor, rwwithin
eight working days after KCDA's receipt of the Application
for Payment, written notification of the reasons thai ali or part
of the payment is being withheld and what remedial actions
the Contractor must take to receive the withheld amount.
I5.5 Substantial Compietion.
15.5.1 When the Contractor believes that ti�e Work
is Substantially Complete, it shall notify KCDA and the Client
in writing. When the Client agrees, the Client will issue a
Certificate of Substantial Completion. Substantial Completion
is the stage in. the Qrogress of the Work when the construcdon
is sufficiently complete, in accordance witlt the Contract
Documents, so the Client can fully utilize the Work (or the
designated pottion thereofl for the use for which it is intended.
All Work other than incidental corrective or punchlist work
and final. cleaning shall have been completed. The Wotk is
not Substantially Complete if all systems and parts affected by
the Worlc are not usable or if utilities affected by the Work are
not connected and operating c�ormally. The fact that the Client
may use or occupy the Work or designated portion thereof
does not indicate that the Work is Substantially Complete, nor
does such occupation toll or change any iiquidated damages
due KCDA.
15.5.2 Immediately before partial or complete
occupancy, the Client will schedule an inspection to�u of the
area to be occupied. A representative of KCDA and/or the
Client, A/E and Contractor will jointly tour the area and record
items stitl remaining to be Finished andlor corrected. The
Contractor shall supply and install any items missed by the
inspection but required or necessary foz Final Completian as a
part of the Contract Sum, notwithstanding their not being
recorded dvring the inspection tour.
�5.6 Ftival Psy�een� Pursuant to RCW 60.28,
completion of the Contract Work shall occur after the
Contractor has notified KCDA and the Client in writing ffiat
the 9�ork }ias been concluded and submits the items listed
below to KCDA and the Client, any required occupancy
permit has been issued, and. the Client's Board formally
accepts the Project ("Finai Acceptance"). Final Payment shall
not become due until after Final Acceptance.
.1 An affidavit that all payrolls, bills for materials
and equipment, and other indebtedness connected
with the Work for which the Client or its property
might in any way be responsible or encumbered, have
been paid or otherwise satisfied,
.2 consent of surety to final payment,
.3 a certificate evidencing ti�at insurance required by
the Contract Documents to reraain in force after final
payment is cwxently in effect and will not be
canceled or allowed to expire until at least 30 days'
prior written noticc has been given to KCDA and the
Client,
Agreement between Ctient and Contractor - Washington 2o�22t is_i.DOC Page 11
.4 a written statement that the Contractar knows of
no substantial reason why the insurance will nat be
renewable to cover the period required by the
Contract Documents,
.5 other data establishing payment or satisfaction of
or protection (satisfactory to KCDA and the Client)
agau�st a11 obligations, such as receipts, releases and
waivers of liens arising out of the Agreement,
satisfactorily demonstrating to KCDA and the Client
that the clairns of Subcontractors and laborers who
have filed claims have been paid,
.6 pursuant to RCW 39.12.(}4U, an "Affidavit of
Wages Paid" from the Contractor and from each
Subcontractor certified by the Industrial Statistician
of the Deparlment of Labor and Industries, with fees
paid by the Contractor or Subcontractor,
.7 a certi�ied statement that the Contractor has closed
all necessary permits or otherwise met the
requirements of all governing jurisdictions retated to
this Project (including, without limitation, city/county
building departments, healt6 districts and utility
districts; attach a copy of each of these closed or
signed-off permits),
.8 all warranties, guarantees, certificates, spare parts,
specified excess material, and other documents or
items required by the Contract Docurnents, and
.9 a hard copy of the "record" drawings and
specifications, delivered in a clear, ciean and legible
condition.
If any Subcontractor of any tier refuses to furnish a
release or waiver required by KCDA of the Client, KCDA
may retain in the fund, account, or escrow funds such amount
as to defray the cost of foreclosing the liens of such claitns and
to pay attomeys' fees, the total of which shatl be no less than
150% of the claimed amount. If any such lien remains
unsatisfied after ali payments are made, the Contractor shall
refund to KCDA alt moneys that the latter or the Client may
be compelled to pay in d'sscharging sach lien, including all
costs aaid reasonable atxorneys' fees.
Final payment shall be made pursuant to RCW b0.28
after the Contractor has pmperly submitted certificates fram
the Department of Revenue, the Department of Labor and
(n.dustries and, puc�suant to RCW SQ24, a certificate from ihe
Department of Employment Security.
15.7 llVaive�s.
V
15.7.1 Final Payment bv KCDA. The making of
final payment shall constitute a waiver of claims by KGDA
and the Client except those arising from (1) liens, claims,
security interests, oe encumbrances arising out of the
Agreement and unsett(ed; (2} failure of the Work to comply
with the requirements of the Contract Documents; or (3) terms
of warranties required by the Contract Documents ar law.
Agreement between Client and Contractor - Washington
15.7.2 Final Payment to Coniractor. Acceptance of
final payment by tt�e Contractor shall consritute a waiver of
Claims except those previausly made in writing and identified
in writing as unsettled on the final Applicatiou for Paymenf.
15.7.3 Change Orders. The execution of a Change
Order shall constitute a waiver of Claims by the Contractor
arising out of the Wo�c to b� performed or deteted pursuant to
the Change 4rder, except as specifically described in the
Change Qrder. If the Contractor adds to a Change Order or
any other document a reservation of rights that has not been
initialed by KCDA and the Client, ail the amounts previously
agreed shall be considered disputed and not yet payable unless
the costs are re-negotiated ar the reservation is withdrawn or
changed in a manner satisfactory to and initialed by KCDA
and the Client. If KCDA makes payment for a Change Order
or an Application for Payment that contains a reservation of
rights not initialed by KCDA and the Client to indicate
agreement with the reservation, and if the Contractor
negotiates the check for such payment, then the reservatian of
rights shall be deemed waived, withdrawn, and of no effect.
15.8 Retainage.
15.8,1 Progress Pa,yments:
.1 Pursuant to RCW 60.28, KCDA wil! reserve 5%
from. t�e moneys the Contractor earns on estimates
during the progress of the BJork, to be retained as a
trust fimd for the protection and payment of the
claims of any person arising under the Agreemern
and the state with respect to taxes imposed pursuant
to Title 82 RC�V which may be due from the
Contractor.
.2 The moneys reserved may, at the option of the
Contractor, be (1) retained in a fund by KCDA until
4S days following Final Acceptance; or (2) depasited
by KCDA in an interest-bearing account in a bank,
mutual savings bank, or savings and loan associarion,
not subject to withdrawal until 45 days following
Final Acceptance, with interest to the Contractor; or
(3) placed in escrow wi#h a bank or trust company
unril 45 days folIowing the Final Acceptance, by
KCDA's joint check to the bank or tivst company
and the Contractor, to be converted into bonds and
securities chosen by the Contractor, approved by
KCDA, and held in escrow, with interest on the
bonds and securities paid to the Contractor as it
acerues.
.3 If moneys are retained frozn the Contractor, it may
eetain payment of not more than 5% from the moneys
eamed by any Subcontractor, pmvided that the
Contractor pays interest to the Subcontractor at the
same interest rate it receives from its reserved funds.
15.9 Warranty of Ti4le. The Contractor
warrants and guarantees that ritle to Work, materiats and
equipmen co v e r e ci by sn Applicati for Payment, whether
2oia2iis_i.DOC Page 12
. incorgorated in tHe Project or not, wil{ pass to the Client no
later than the time of payment, free and cleaz of liens.
A�tTICH.E lb
PltO'I'ECT�ON OF PERSOIVS ANiD PROPER'Y'�'
lb.l The Conlractor shall be solely responsible
for, and neither KCDA, the Cl.ient, nor the A/E shall have
responsibility for, atl aspects of safeiy, including initiating,
maintaining, and supervising all safety precautions and
programs in connection with Ihe performance of the
Agreement. The Contractor shall take reasonable precautions
for safety o� and shall provide reasonable protection to
prevent damage, injury or loss to (I) employees on the Work
and other persoas who may be affected thereby; (2} the Work
and materials and equipment to be incorgorated. therein; and
(3) other property at the site or adjacent thereto.
16.2 The Contractor shail give notices and
comply with applicable laws, ordinances, rules, regul.ations
and lawful orders of public authorities bearing on safety of
persons and property and their protecrion from dam.age, injury,
or loss. The Contxactor shall promptly remedy damage and
loss to property at the site caused in whole or in part by the
Contractor, a Subcontractor of any tier, or anyone directty or
indirectly employed by any of them, or by anyone far whose
acts they may be liable and for which the Contractor is
responsible, except for damage or luss aUributabte to acts or
omissions of KCDA, ihe Client, or A/E or by anyone for
whose acts any of them may be liable, and not attributabie to
the fault or negligence of the Contractor. The foregoing
obligations of the ContracWr are in addition to the
Contractor's obligations uncier Paragraph 10.12.
16.3 The Contractor shall not be required to
perform without consent any QVork relating to asbestos or
polychlorinated biphenyl ("PCB") unless specifically required
by the Contract Documents.
16.4 The Contractar shatl bear the risk of any
loss, damage or destruction vf its own property, including
without tirnitation its tools, trailers and equipmeflt, whether
rented or ow�eed, to the extent that they wilI not be
incorporateci in the Work Any insurance provided by the
Client wiil not cover any such loss, damage or destructi.on.
AItTICLE 17
INSUIZANCE Al�ii) BO1�tIDS
17.1 Cootractor's Liabit�ty lnsurance.
17.1.1 T'he Contractor shalt purchase fiom and
maintain during the life of th.is Agreement, at its own cost in a
company or companies admitted to do business in the State of
Washington, possessing a Best's policy halder's rating of A-
or better and a financial rating of no Iess than VII, and
reasonably acceptable to KCDA and the Client, an occurrence-
based Commercial General Liability Insurance Policy which
shall provide bodily injury and property damage liability on
the Contractor's operations, including its Subcoutractors of
any tier; owned, non-owned and. hired vehicles; and on work
Agreement between Client and Contractor - Washington
t1�e Contractor may subcontract or sublet to others; and on the
indemnity provisians of this Agreement. This insurance wiil
name KCDA and the Ciient and their employees as additional
insareds per Additional Insured 4wner's (Form B) for Work
performed under this Ageement The Contractor's policy
shail be designated primary coverage for bath defense and
indemnity, and any KCDA or Client po�icies excess. Such
limits of liability insurance shall have per project general
aggregate provisions and shall not be less than ihe followiag:
.l $1,000,000 Combined Singie Limit protection for
both bodily injury and property damage liability per
occurrence and $2,000,000 general aggregate;
.2 $1,000,000 per accideat for bodily injury liability
including sickness, disease or death an.d property
damage liability because of damage to or deswction
of property of others, including loss of use thereof
arising out of the operation of automobiles.
3$],OOd,tt00 for personal injury liability coverage
included and definec� in the Commercial Generai
Liability insurance policy for damages which are
sustained by (1) a person as a result of an offense
directly or indffectly related to empioyment of such
person by the Contractor, or (2) by another person.
.4 $1,000,000 for claims involving blanket
contractual liability insurance {inclnded and defined
in the Commercial General Liability Insurance
Policy) applicable to ihe Contractor's obligations
un.der Paragaph 1.0.12.
.5 In addition, ihe Contra.ctar shall maintain a true
umbrella policy that provides excess timits over the
primary layer, in an amount not less than $2,000,000.
17.12 The insurance described above shal} include
coverage for underground, collapse and explosion exposures.
17.1.3 In addition, the Contcactor shall purchase
and maintain insurance for claims under wortters'
compensation (industrial insw�ance), disa6ility benefit and
other similar e�nployee benefit acts in the State statutory
amount and Employer's Liabitity with coverage of at least
$250,000/�500,000.
17.1.4 Before commencing the Work or exposure
to .loss can occtv, and, in any event, within ten days after
KCDA has issued its notice of intent to award contract, the
Contractor shall fumish KCDA and the Client with
Certificates of Insurance, in duplicate, as evidence of all
insurance eequired by the Contract Documents.
17.1.5 Coverage shall be maintained without
interruption from the daie of commencement of the Work until
the date of Final Acceptance, except for any coverage rec�uired
to be main.tained after Final Acceptance. Completed
operations coverage shall remain in force for tivee yeazs after
Final Acceptance.
Zo�2a�is_�.00c Page 13
• 2 7.1.6 �f KGDA or the Client is damaged by the
faiture of the Con�actor to maintain any of the above
insurance or ta so notify KCDA and tbe Client, than the
Contractor shall bear all costs property attributable thereto.
KCDA MAY WITHHOLD PAYMENT PENDING RECEIPT
OF ALL CBRTIFICATES OF INSURANCE. Failure to
withhold payment shalt not constitute a waiver.
17.1.7 KCDA's spec�cation or approval of the
insurance in this Agreement or of its amaunt shall not relieve
or decrease the liability af the Contractor under the Contract
Documents or otherwise. Coverages are the minimum to be
provided and are not limitations af liability under the Contract,
indemnification, or applicable law provisions. The Contractor
�nay, at its expense, parchase larger coverage amounts or
additional insurance.
17.2 Property Insurancc.
17.2. [ The requirements for praperiy insurance are
addressed in Article 6 above.
1.7.3 Waivers of Subrogation.
17.3.1 KCDA, the Client, and the Contractor waive
all rights against each other and any of their subconira.ctors of
any tier, the A/E, their consultants, separate con.tractors
described in Article 12 (if any), and any of their respective
agents and employees, for damages caused by fire or oiher
causes of loss to the extent covered by property "visurance
obtained pursuant to Artic[es 6 and 17.2 or other property
insurance appiicable ta t�e Work, except such rights as they
bave to proceeds of such insurance held by the Client as
fiduciary. KCDA and the Client do not waive theu
subrogation rights to the extent of the Client's property
insurance on structures or portions of structures that do not
comprise the Worlc. A waiver of subrogation shall be
effective as to a person or entity even though that person or
entity wou.ld ot�►erwise 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 fhe property damaged.
17.4 PaymenY and Performance Bond.
17.4.1 The Contraetor is required to submit a bond
secured from a surety company licensed to do business in the
State of Washington. 1'he Contractor shall pay for a surety
bond in the full amount of the Contract Svm plus sales tax,
pursuant to RCW 39.08. Within seven days of enter�ng into
the Agreement, th.e Cantractor shall deliver two copies of the
bond to KCDA and one copy each ta the Client and the A/�.
The price of the bond will be added to the total con�act
amount to be paid by the Client. KCDA MAY DECLIAIE TO
ENTER INTO THE C4NTRACT IF EVIDENCE OF
BONDABILITY IS NOT REGEIVED, AND THE CLIENT
MAY WITHH�LD ITS NOTICE TO PROCEED AND/OR
WITHHOLD PAYA�ENT TO THE COAiTRACTOR UNTiL
SUCH SURETY BOND IS RECEIVED.
ARTICY.,E 18
CORI[�ECTION O� WORK
��.1 The Contaactor shall promptly and wi.thin at
least fourteen (14) days of notice from the Client or KCDA
correct Wortc rejected or failing to conform to t�e
requirements of the Contract .Documents at any time through a
period of one year from s�e date of Substantial Completion of
the Agreement or by terms of a longer manufacturer's
warranty or an applicable special warranty required by the
Contract Documents. The provisions of this Artide apply to
Vi/ork done by Subcontractors of any tiee as well as to Work
done by direct employees of the Contractor.
18.2 If the Contractor fails to correct Work that is
not in accordance with the requirements of the Contract
Documents or fails to cany out the Work in accordance with
the Contra�ct Documents, KCDA and/or the Client, by a
written order, may order the Con�actor to stop the Worlc, or
any gortion thereof, until the cause for such order has been
eliminated.
18.3 Nothing contained in this Article shall be
construed to estabtish a period of limitation with respect to
other obligations which the Contractor might have under �e
Contract Documents. Establishment of the time period of one
yeaz as described above relates only to the specific obligation
of the Contractor to correct the Work and has no reiationship
to the time within which the abligarion to comply with the
Contract Documents may be sought to be enf'orced, nor to die
time within which proceedings may be commenced to
establish the Contractor's IiabiIity with respect to the
Contractor's obligations other than specifically to correct the
Work.
AD3TICLE 19
Ng6SCEL�,ANEOgTS PI20VISIONS
19.T Appl)cabte Law. The Agreement shall be
governed by the laws of the State of Washington, without
regard to its choice of law provisions.
19.2 Statutes. The Contractor sh.all abide by the
provisions of ai1. applicable Washington statutes. The statutes
referenced in the Contract Documents are not meant to be a
complete list and should not be relied upan as such.
19.3 Cootractor Registration and Related
itequireme�ts. Pursuant to RCW 39.06, the Contractor shali
be registered or licensed as required by ti�e laws of the State of
Washington, including but not limited to RCW 18.27. The
Conlractor shall: have a current staie unified business
identifier number; ha.ve industrial insuiance coverage for the
Contractor's empioyees working in Washington as required in
Title 51 RCW; have an employment security department
number as requiced in Title 50 RCW; have a state excise tax
registration number as required in Title 82 RCW, and; not he
disqe�atified fram bidding on any public works contraet under
RCW 39.06.010 (unregistered or unlicensed contractors} or
RCW 39.12.065(3) (prevailing wage viola.tions).
Agreement between Client and Contractor - Washington zo�2zs �s_i.DOC Page 14
, , 14.4 l.aw Agaanst Discrimination. Coniractor
shall comply wit�► pertinent statutory provisions retating to
public works of RCW 49.60.
19.5 Provisions for Aged and Handicapped
Persons. Contractor sha.11 comply with pertinent statutory
provisions relating to public works of RCW 70.92.
19.6 Safety Standards. Coniractor shall comply
with pertinent provisions af Chapter 296-155 WAC, "Safety
Standards for Canstrucrion Work."
19.7 Unemployment Compensation. Pursuant
to RCW 50.24 in gen.eral and RCW 50.24.t3� in particular,
the Contractor shall pay contnbutions for wages for personat
services performed ander this Agreement or anar►ge far a
bond aceeptable tp the commissioner.
19.8 IDrug-Frec Workplace. The Contractor and
all Subcontractors shall fully comply with all applicable
federal, state, and local laws and regulations regarding d�ug-
free work�lace, incl.uding the Drug-Free Warkpiace Act of
198�. Any person nat fit far duty for any reason, including
the use of alcohol, controlled suhstances, or drugs, shall
itnmediatety be removed from the Work.
19.9 TobaccaFrce E�avironment. Smoking ar
use of any kind of lighted pipe, cigar, cigarette or any other
lighted smoking equipment, material or smokeless tobacco
products is prohihited on all Client property.
I9.10 Asbestos Removal. To the extent this
Project involves asbestos removal, the Contractor shall
comply with RCW 49.26 and any provisions of the
Washington Administrative Code promulgated thereunder.
19. fl 1 �issign.�ent. The Contractor shall not let,
delegate duties under, assign or transfer this Agreement, or
any interest in it or part of it, without the prior written consent
of KCDA and the Client.
ARTICLE 20
TEItIdIIPiA7'ION OF'9'IE�E COiV"CRAC1'
2d.1. Termination !or Cause by Contractor. If
KCDA fails to make payment for a period of 60 days through.
n.o fault of the Contractor and has been given a{�proval by the
Client, the Contractor may, upon seven additional days'
written notice to KCDA, terminate the Agreement and recover
from KCDA payment for all Work pmperl.y executed and for
proven loss with respect to materials, equ'rpment, tools, and
consttvction equipment and machinery, including Fees
appiicable thereto.
20.2 Termin�Hon for Cause by Clien� The
Client may, upon seven days' weitten notice to the Contractor,
terminat,e (without prejudice to any right or remedy of KCDA
or the Ciient) the whole or any portion of the Work for cause,
including but not limited to the following circumstances:
.1 the Contractor fails to prosecute the Work or any
portion thereof with sufficient diligence to ensure the
Completion ofthe Work within the Contract'Time;
.2 the Gontractor is in material default of or
materially breaches any provisions of this
Agreement;
.3 the Contracwr is adjudged bankrupt, makes a
general assignment for the benefit of its creditors, or
if a receiver is appointed on account of its
insaivency;
.4 the Contractor fails to supply a sufficient number
of properiy skilled warkers or proper materials;
.5 the Contractor fails to make prompt payment to
Subcontracto.rs or for materials or labor;
.6 the Contractor materially disregards laws,
ordinances, rules, regulations or orders of any public
authority having jurisdiction; or
.7 the Contractor Eails to comply with the provisians
of RCW 28A.400.330 by permitting a worker on the
Project having contact with children wha has been
convicted of or pled guilty to a felony crime
involving children as described in Parag'aph 103.
2�.3 Termination for Convenience by Ctien� The
Client may, at any time upon seven days' writxen notice to the
Contractor, terminate (without prejud.ice to any right or
remedy of the Client or KCDA) the whole or any portion of
the Work for the convenience of KCDA and the Client. The
Client shall be liable to Contractor only for diose costs
reimbursable to Coniractor in accordance witl� the following:
.1 'The amotmt due under Arti.cles 4 of this
Ageement for the perfarmance of the Wark
terntinated;
.2 Other pre-approved costs, consistent with
Paragraph 13.2, necessary and reasonably incurred in
connection with the terminatian of Work.
The total swn to be paid ta the Contractor under this
Paragraph 203 shall not exceed the Contract Sum as reduced
by the amount of payments otherwise made.
20.4 Effects of Terroination.
20.4.1 Unless the Client direets otherwise, after
receipt of a Not�ce of Termination from the Client pursuant to
Paragraph 20.2 or 20.3, the Goniractor shall promptly:
.1 stop Work under the Agreement on the date and as
specified in the Notice of Termination;
.2 place no further orders or subcontracts for
rnaterials, equipment, services or facilities, except as
Ageement between Client and Contractor - Washington zo122iis_�.�oc Page l5
. may be hecessary for completiop of any portion of
the Work that is not termir►ated;
3 pracure cancellation of all orders and
subcontracts, upon terms acceptabte to t�e Client, to
the extent that they rela.te to the performance of Work
ternninated;
.4 assi� to the Client al3 of. the right, title and
interest of the Contractor under all orders and
subcontracts, in which case the Client shall have the
right, in its discretion, to settle oc pay any ot all
claims arising out of the termination of such orders
and subcontracts;
.5 with the Client's approval, settle al.l outstanding
liabilities and ai.l claims arising out of such
termination of orders and subcontracts not assigned
to the Client;
.6 transfer title and deliver to t.�e entity or entities
designated by die Client the fabricated or
unfabricated parts, Work in process, partially
completed supplies and equipment, materials, parts,
tools, dies, jigs and other fixtt�res, completed Work,
supplies and other material produced as part of, or
acquired in connection with the performance of, the
Work terminateci, and the compteted or partiatly
completed plans, dxawings, information and other
property related to the Rrork;
.7 use its best efforts to sell any property of the types
referred to in Subpatagtaph 20.4.1.6. The Contractor
may acyuire any such property under the conditions
prescn'bed by and at a price or prices appraved by the
Ctient, and the proceeds of any such transfer or
disposition may be applied in reduction of any
payments to be made by the Clierit to the Contractor;
.8 take such action as may be necessary or as
directed by the Client to peeserve and protect the
Work and property relatsd w this Project in the
possession of ttie Contractor in which the Client has
an interest; and
.9 continue performance only to the extent not
term'snated..
20.4.2 In arrivin.g at any amoiu►t due the Contractor
atter termination, the following deductions shall be made:
.1 all unliquidated advance or other prior payments
on account made to the Contractor appiicable to the
terminated portian of the Agreement;
.2 any claim which KCDA or the Client may have
against the Contractor;
.3 an amount necessary to protect KCDA and the
Client against outstanding or potential liens or
ctaims; and
Agreement between Client and Contractor - Washington
.4 the agreed price for or the proceeds of sale of any
materials, supplies or other things acquired by the
Contractor or sold, pnrsuant to the provisions of
Subparagraph 20.4.1.7, and not otherwise recovered
by or credited W KCDA.
20.4.3 If {and only ifl the termination pursuant to
Paragraph 20.3 is partial, the Contractor may file a Claim for
an eyuitable adjustment af the price or prices specified in the
Agreement relating to the continued portion of the Ageement.
The Contractor must assert any Claim for an equitable
adjustment under tfiis subparagraph within twenty-one days
from the effective date of the Termination.
20.4.4 'The Contractor shall refimd to KCDA any
amounts KCDA paid to die Contracto.r in excess of costs
reimbursable under Paragraph 20.3.
20.4.5 The damages and relief &om termination by
the Client specifically provided in Article 20 shall t� the
Contxactar's sole entitlement in the event of termination.
20.4.6 When this Agreement refers to a
termination, it is understood that the termination is of this
Agreement, the Purchase Order, and all relaf�ed contract
documents.
End of Section
zoizz��s_t.�oc Page 16