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2022-05-17 City Council - Full S Agenda-31771. 2. 3. 4. 4 Op E D o Agenda Edmonds City Council tnl. }nyo SPECIAL MEETING COUNCIL CHAMBERS 250 5TH AVE NORTH, EDMONDS, WA 98020 MAY 17, 2022, 6:00 PM PERSONS WISHING TO JOIN THIS MEETING VIRTUALLY IN LIEU OF IN -PERSON ATTENDANCE FOR THE PURPOSE OF PROVIDING AUDIENCE COMMENTS CAN CLICK ON OR PASTE THE FOLLOWING ZOOM MEETING LINK INTO A WEB BROWSER USING A COMPUTER OR SMART PHONE: HTTPS://ZOOM. US/J/95798484261 OR COMMENT BY PHONE: US: +1 253 215 8782 WEBINAR ID: 957 9848 4261 THOSE COMMENTING USING A COMPUTER OR SMART PHONE ARE INSTRUCTED TO RAISE A VIRTUAL HAND TO BE RECOGNIZED. PERSONS WISHING TO PROVIDE AUDIENCE COMMENTS BY DIAL -UP PHONE ARE INSTRUCTED TO PRESS *9 TO RAISE A HAND. WHEN PROMPTED, PRESS *6 TO UNMUTE. WHEN YOUR COMMENTS ARE CONCLUDED, PLEASE LEAVE THE ZOOM MEETING AND OBSERVE THE REMAINDER OF THE MEETING ON THE COUNCIL MEETINGS WEB PAGE. REGULAR COUNCIL MEETINGS BEGINNING AT 7:00 PM ARE STREAMED LIVE ON THE COUNCIL MEETING WEBPAGE, COMCAST CHANNEL 21, AND ZIPLY CHANNEL 39. CALL TO ORDER ROLL CALL AUDIENCE COMMENTS ON AGENDA ITEM 4.1 - JOB ORDER CONTRACTING COUNCIL BUSINESS 1. Award Job Order Contracts (10 min) EXECUTIVE SESSION: PENDING OR POTENTIAL LITIGATION, RCW 42.30.110(1)(1) (45 MIN.) ADJOURN Edmonds City Council Agenda May 17, 2022 Page 1 4.1 City Council Agenda Item Meeting Date: 05/17/2022 Award Job Order Contracts Staff Lead: Rob English Department: Engineering Preparer: Emiko Rodarte Background/History April 6, 2021 - The City Council consented the approval of Job Order Contracting initiating staff process for advertising a Request for Proposal. July 6, 2021- The City Council approved a Professional Services Agreement(PSA) for JOC services with Gordian, Inc. On January 18, 2022, the City Council approved a Resolution to amend the Purchasing Policies and Procedures for Job Order Contracting. January 25, 2022 - The City Council authorized the advertisement of a request for proposals for Job Order Contracting. On April 12, 2022, this item was presented to the Parks and Public Works Committee and the item was scheduled for approval at a future City Council meeting. Staff Recommendation Award Job Order Contracts to: (1) Forma Construction, (2) Centennial Contractors and (3) Saybr Contractors. Narrative In 2019, the City started the process of creating a Job Order Contracting (JOC) program per RCW 39.10.410. Since this time, the City's purchasing policy has been amended to allow for the utilization of JOC and the City executed an agreement for JOC administration assistance with Gordian to develop the program. In January 2022, the City Council approved the advertisement of a Request for Proposals (RFP) to solicit proposals from JOC prime contractors. On March 7, 2022, the City received proposals from Burton Construction, Centennial Contractors Enterprises, Forma Construction, Saybr Contractors and Swinerton. Each proposal was evaluated and scored based on the criteria established in the RFP. Staff recommends awarding JOC contracts to Centennial Contractors Enterprises, Forma Construction and Saybr Contractors. Attachments: Packet Pg. 2 4.1 Attachment 1 - Forma Construction Attachment 2 - Centennial Contractors Attachment 3 - Saybr Contractors Attachment 4 - Presentation Packet Pg. 3 4.1.a CITY OF EDMONDS, WASHINGTON JOB ORDER CONTRACT THIS JOB ORDER CONTRACT (hereinafter "the Contract") is entered into by and between the City of Edmonds (hereinafter "the City") and Forma Construction (hereinafter "the Contractor"). The City and the Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows: SECTION 1— WORK The Contractor shall complete all Work as specified or indicated in the Contract Documents The Work is generally described as follows: The Work of this Contract will be set forth in each Detailed Scope of Work referenced in the individual Job Orders. The Contractor is required to complete each Detailed Scope of Work for the Job Order Price within the Job Order Completion Time. The value of the Job Order Price Proposal shall be calculated by summing the total of the calculation for each Pre -priced Task (Unit Price x quantity x Adjustment Factor) plus the value of all Non-Prepriced Tasks. SECTION 2 — CITY REPRESENTATIVES 2.1 Project Manager: The City will appoint a Project Manager for each Job Order, who shall be the City's representative, assume all duties and responsibilities and have the rights and authority assigned to the Project Manager in the Contract Documents in connection with completion of the Work in accordance with the Job Order and the Contract Documents. 2.2 Contract Administrator: The JOC Contract Administrator is designated by the City to manage the Job Order Contracting program for the City. The Contract Administrator will oversee the execution of the program on behalf of the City and will provide overall guidance to the Project Managers and Contractor(s) in the execution of Job Orders. The Contract Administrator shall intervene in disputes or disagreements between the Project Manager and the Contractor. The Contract Administrator also may exercise any authority granted to Project Managers under the Contract Documents with respect to any Job Order at any time. SECTION 3 — CONTRACT TIME 3.1 The Base Term of the Contract is two (2) years. 3.2 There is one (1) bilateral Option Term. Both parties must agree to extend the Contract for the Option Term. The duration of the Option Term is one year. 3.3 The City and the Contractor may agree to extend the Option Term. Page 1 of 103 Packet Pg. 4 4.1.a 3.4 All Job Orders issued during the term of this Contract shall be valid and in effect notwithstanding that the Detailed Scope of Work may be performed, payments may be made, and/or the guarantee period may continue after the Contract term has expired. All terms and conditions of the Contract apply to each Job Order. 3.5 The Contractor shall commence work upon issuance of a Job Order and shall complete the Detailed Scope of Work for the Job Order Price within the Job Order Completion Time. SECTION 4 — CONTRACT PRICE 4.1 The City shall pay the Contractor for completion of each Detailed Scope of Work in accordance with the Contract Documents. 4.2 The Contract is an indefinite -quantity contract for general construction work and services. The Minimum Contract Value of Job Orders that the Contractor is guaranteed the opportunity to perform under this Contract is Twenty -Five Thousand Dollars ($25,000). The Estimated Annual Value is two Million Dollars ($2,000,000) for the City's Job Order Contracting Program. The City reserves the right to issue up to the maximum amount specified in RCW 39.10.40 of Four Million Dollars ($4,000,000) per year or such greater amount that may be authorized by statute. The Maximum Contract Value shall not exceed the value set forth in the RCW. 4.3 The Contractor is not guaranteed to receive the Estimated Annual Value. It is merely an estimate. Owner has no obligation to give the Contractor the opportunity to perform Job Orders in excess of the Minimum Contract Value. 4.4 The Contractor shall perform all work required, necessary, proper for or incidental to completing the Detailed Scope of Work called for in each individual Job Order issued pursuant to this Contract for the Unit Prices set forth in the Construction Task Catalog° and the following Adjustment Factors: Normal Working Hours Adjustment Factor (General Facilities) 7:00 am to 4:00 pm Monday through Friday, except for City Holidays: 1.3298. Other Than Normal Working Hours Adjustment Factor (General Facilities) 4:01 pm to 6:59 am Monday through Friday, and all -day Saturday, Sunday and City Holidays: 1.3298. Normal Working Hours Adjustment Factor (Secured Facilities) 7:00 am to 4:00 pm Monday through Friday, except for City Holidays: 1.3498. Other Than Normal Working Hours Adjustment Factor (Secured Facilities) 4:01 pm to 6:59 am Monday through Friday, and all -day Saturday, Sunday and City Holidays: 1.3498. Non-Prepriced Adjustment Factor: 1.1500. Page 2 of 103 Packet Pg. 5 4.1.a SECTION 5 — PAYMENT PROCEDURES The Contractor shall submit Applications for Payment in accordance with Article 12 the General Conditions. Applications for Payment will be processed by the Contract Administrator with approval by the Project Manager as provided in the General Conditions. 5.1 Progress Payments. The City shall make progress payments on account of the Job Order Price on the basis of the Contractor's Invoices as recommended by Project Manager and Contract Administrator in accordance with the General Conditions. All progress payments will be on the basis of the progress of the Work as established in the General Conditions (and in the case of Unit Price Work based on the number of units completed). 5.2.1 Final Payment. Upon final completion and acceptance of the work in accordance with the General Conditions, City shall pay the remainder of the Job Order Price as recommended by Project Manager and Contract Administrator. A Certificate of Completion signed by the Project Manager is required prior to payment of any final invoice(s). 5.2.2 Schedule. As determined by the Project Manager, progress payments shall be made per the Project Payment Schedule. 5.2.3 Separate Contract. Per RCW 39.10.450, for purposes of chapters 39.08, 39.12, 39.76, and 60.28 RCW, each Job Order issued shall be treated as a separate contract. The Contractor will provide the bonds as set forth in the RFP and in the General Conditions on the forms provided by the City. SECTION 6 — INDEMNIFICATION The indemnity and defense obligations in this Section 6 are in addition to any other indemnity and defense obligation elsewhere in the Contract Documents. A. The Contractor will defend and indemnify the City from any and all Claims arising out of, in connection with, or incident to any acts, errors, omissions, or conduct by the Contractor relating to, or arising out of its performance of, this Contract. The Contractor will defend and indemnify the City whether a Claim is asserted directly against the City, or whether a Claim is asserted indirectly against the City, e.g., a Claim is asserted against someone else who then seeks contribution or indemnity from the City. The amount of insurance obtained by, obtainable by, or required of the Contractor does not in any way limit the Contractor's duty to defend and indemnify the City. The City retains the right to approve Claims investigation and counsel assigned to said Claim and all investigation and legal work regarding said Claim shall be performed under a fiduciary relationship to the City. B. The Contractor's obligations under this Section shall not apply to Claims caused by the sole negligence of the City. If: (1) RCW 4.24.115 applies to a particular Claim; and (2) such Claim is caused by or results from the concurrent negligence of: (a) the Contractor, its employees, subcontractors/subconsultants or agents; and (b) the City, then the Contractor's obligations under this Section 6 shall apply only to the extent allowed by RCW 4.24.115. y r V R L 0 U aD 0 M 0 3 Q Page 3 of 103 Packet Pg. 6 4.1.a C. As used in this section: (1) "City" includes the City's officers, employees, agents, and representatives; (2) "Claims" include all losses, claims, demands, expenses (including, but not limited to, attorney's fees and litigation expenses), suits, judgments, or damage, whether threatened, asserted or filed against the City, whether such Claims sound in tort, contract, or any other legal theory, whether such Claims have been reduced to judgment or arbitration award, irrespective of the type of relief sought or demanded (such as money or injunctive relief), and irrespective of the type of damage alleged (such as bodily injury, damage to property, economic loss, general damages, special damages, or punitive damages); and (3) "Contractor" includes the Contractor, its employees, agents, representatives and subcontractors. D. The Contractor waives any right of contribution against the City. It is agreed and mutually negotiated that in any and all claims against the City, its agents or employees, the Contractor, a subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor, or anyone for whose acts any of them may be liable, the defense and indemnification obligations hereunder shall not be limited in any way by any limitation on the amount of damages, compensation, or benefits payable by or for the Contractor or any subcontractor under industrial worker's compensation acts, disability benefit acts, or other employees' benefit acts. The Contractor's and City's signatures hereto indicate specific waiver of the Contractor's industrial insurance immunity in order to fulfill this indemnity. Solely for the purpose of indemnification and defense as provided in this Contract, the Contractor specifically waives any immunity under the State Industrial Insurance Law, Title 51 RCW. The Contractor expressly acknowledges that this waiver of immunity under Title 51 RCW was the subject of mutual negotiation and was specifically entered into pursuant to the provisions of RCW 4.24.115. SECTION 7 — CONTRACTOR'S REPRESENTATIONS The Contractor makes the following representations: 7.1 The Contractor has familiarized itself with the nature and extent of the Contract Documents, Work, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work. 7.2 The Contractor is fully qualified to perform the Work to be performed hereunder in a competent and professional manner. 7.3 The Contractor has given the Project Manager written notice of all conflicts, errors or discrepancies that it has discovered in the Contract Documents and the written resolution thereof by the Project Manager is acceptable to the Contractor. SECTION 8 — CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between the City and the Contractor concerning the Work consist of the following: 8.1 This Contract and its exhibits, if any. In a Federally Funded Job Order (as defined in the General Conditions) this Contract includes the applicable current Federal Contract Clauses, which the City will specifically designate in the Job Order. These Federal Contract Clauses are only applicable to that specific Federally Funded Job Order and have no force or effect with respect to any other Job Order. A Federally Funded Job Order may also include one - Page 4 of 103 Packet Pg. 7 4.1.a time changes to the Contract Documents specifically for that Job Order signed for the City by the Contract Administrator as necessary to coordinate the requirements of the applicable Federal Contract Clauses with the requirements of the Contract Documents. 8.2 General Conditions, attached hereto and incorporated by reference. 8.3 Supplementary Conditions, attached hereto and incorporated by reference. 8.4 The RFP and all addenda, incorporated by reference. 8.5 Contractor's Proposal, incorporated by reference. If there is inconsistency between any provision of the Contractor's Proposal and any other Contract Document, then the provision imposing the more stringent requirement on the Contractor will control. 8.6 The Construction Task Catalog® and Technical Specifications, incorporated by reference 8.7 All Job Orders and related documents, including but not limited to, the Detailed Scope of Work with Drawings and/or Specifications, Request for Proposal, Price Proposal, Job Order Proposal, Notice to Proceed, submittals, record documents, and all required close-out documentation and warranties, incorporated by reference. If there is inconsistency between any provision of the documents listed in this Section 8.7 and any other Contract Document, then the provision imposing the more stringent requirement on the Contractor will control. There are no Contract Documents other than those listed above in this Section 8. The Contract Documents may only be amended, modified or supplemented as provided in the General Conditions or Supplementary Conditions. All Contract Documents are essential parts of the Contract, and a requirement occurring in one is as binding as though occurring in all. In cases of conflict in the requirements and provisions as set out by the Contract Documents, the specifications, or the drawings, such conflict shall be reconciled by the order of precedence in the order the Contract Documents are set forth above. Additionally, in the event of conflicting provisions within the Job Order Contract, the following order of precedence with item (a) representing the highest precedence for resolution of the conflict shall apply: a) Contract Modifications (later takes precedence over earlier) b) Job Order Contract c) Addenda (later takes precedence over earlier) d) Job Orders (including Detailed Scopes of Work, Job Order Proposals, and any Supplemental Job Orders) e) Request for Proposals f) General Terms and Conditions g) Special and Supplementary Conditions (when provided) h) The Construction Task Catalog© i) Gordian Technical Specifications Any modification of any Contract Document listed in sections 8.1 to 8.6 above requires an amendment executed by an authorized representative of the City and by an authorized representative of the Contractor. Changes to Contract Documents listed under Section 8.7 may be Page 5 of 103 Packet Pg. 8 4.1.a executed by an authorized representative of the Contractor and by the Project Manager or the Contract Administrator for the City. SECTION 9 — PREVAILING WAGES Contractor shall comply with all state and federal laws relating to the employment of labor and wage rates to be paid. The Contractor will be required to file prevailing wage intents and affidavits with the Washington State Department of Labor & Industries for each Job Order. A Federally - Funded Job Order may specify the Davis -Bacon Act and Copeland Anti -Kickback Act, in which case the Contractor shall comply with these requirements. The Contractor will pay Washington state prevailing wages or Davis -Bacon wages, whichever is higher. SECTION 10 — MISCELLANEOUS 10.1 Terms used in this Contract which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 10.2 No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.3 City and Contractor each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. 10.4 This Contract is governed by the laws of the State of Washington, without regard to the principles of conflict of laws. Any action or suit brought in connection with this Contract shall be exclusively brought in the Superior Court of King County, Washington. 10.5 Force Majeure: Neither party shall be liable to the other or deemed in breach or default for any failure or delay in performance under this Contract during the time and to the extent its performance is prevented by reasons of Force Majeure. For the purposes of this Contract, Force Majeure means an occurrence that is beyond the reasonable control of and without fault or negligence of the party claiming force majeure and which, by exercise of due diligence of such party, could not have been prevented or overcome. Force Majeure shall include natural disasters, including fire, flood, earthquake, windstorm, avalanche, mudslide, and other similar events; acts of war or civil unrest when an emergency has been declared by appropriate governmental officials; acts of civil or military authority; freight embargoes; epidemics; quarantine restrictions; labor strikes; boycotts; terrorist acts; riots; insurrections; explosions; and nuclear accidents. A party claiming suspension or termination of its obligations due to force majeure shall give the other party prompt written notice, but no more than two (2) working days after the event, of the impediment and its effect on the ability to perform; failure to provide such notice shall preclude recovery under this provision. Page 6 of 103 Packet P9. 9 4.1.a 10.6 Nondiscrimination: In hiring or employment made possible or resulting from this Contract, there shall be no unlawful discrimination against any employee or applicant for employment because of sex, age (except minimum age and retirement provisions), race, color, creed, national origin, citizenship or immigration status (except if authorized by federal or state law, regulation, or government contract), marital status, sexual orientation, honorably discharged veteran or military status, the presence of any sensory, mental, or physical handicap or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification. This requirement shall apply to but not be limited to the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt or the benefit of any services or activities made possible by or resulting from this Contract on the grounds of sex, race, color, creed, national origin, age (except minimum age and retirement provisions), citizenship or immigration status (except if authorized by federal or state law, regulation, or government contract), marital status, sexual orientation, honorably discharged veteran or military status, the presence of any sensory, mental or physical handicap, or the use of a trained dog guide or service animal by a person with a disability. 10.7 Integration: The agreement between the parties shall consist of this Contract, its attached Appendices 1 & 2 and General and Supplementary Conditions, and all other Contract Documents referenced in Section 8, above. These writings constitute the entire agreement of the parties and shall not be amended except by a writing executed by both parties. In the event of any conflict between this written Contract and any provision in the Contract Documents, the order of precedence shall apply. 10.8 This Contract, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by the Contractor to any other person or entity without the prior written consent of the City, which consent will not be unreasonably withheld. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of the Contractor as stated herein. 10.9 Counterpart Originals: This Contract maybe executed in any number of counterpart originals, each of which shall be deemed to constitute an original Contract, and all of which shall constitute one Contract. The execution of one counterpart by a Party shall have the same force and effect as if that Party had signed all other counterparts. Page 7 of 103 Packet Pg. 10 4.1.a IN WITNESS WHEREOF, the City and the Contractor have signed this Contract. This Contract is effective as of the date of the last person to sign it, and may be executed in multiple counterparts, each of which shall be deemed an original. CITY OF EDMONDS, WASHINGTON Mike Nelson, Mayor ATTEST/AUTHENTICATED: Scott Passey, City Clerk Date: APPROVED AS TO FORM: Office of the City Attorney CONTRACTOR Jim Phillips, President, Forma Construction Date: Page 8 of 103 Packet Pg. 11 4.1.a JOB ORDER CONTRACT APPENDIX 1 (Appendix A of USDOT 1050.2A Standard Title VI Assurances) During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter collectively referred to as the "Contractor") agrees as follows: 1. Compliance with Regulations: The Contractor shall comply with the acts and regulations relative to nondiscrimination in federally -assisted programs of the United States Department of Transportation (USDOT), Title 49, Code of Federal Regulations, Part 21 (49 CFR 21), as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Agreement. 2. Nondiscrimination: The Contractor, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Contractor shall not participate directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers any activity, project, or program set forth in Appendix B of 49 CFR 21. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, request for proposal, or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials, or leases of equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. 4. Information and Reports: The Contractor shall provide all information and reports required by the Regulations and directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the appropriate state or federal agency to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor shall so certify to the City, or state or federal agency, as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such contract sanctions as it or the appropriate state or federal agency may determine to be appropriate, including, but not limited to: • Withholding of payments to the Contractor under the Agreement until the Contractor complies; and/or • Cancellation, termination, or suspension of the Agreement, in whole or in part. 6. Incorporation of Provisions: The Contractor shall include the provisions of the above paragraphs one (1) through five (5) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Contractor shall take such action with respect to any subcontractor or procurement as the City or appropriate state or federal agency may direct as a means of enforcing such provisions, including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with, litigation by a subcontractor or supplier as a result of such direction, the Contractor may request that the City enter into such litigation to protect the interests of the City; or may request that the appropriate state agency enter into such litigation to protect the interests of the State of Washington. In addition, the Contractor may request the appropriate federal agency enter into such litigation to protect the interests of the United States. Page 9 of 103 Packet Pg. 12 4.1.a JOB ORDER CONTRACT APPENDIX 2 (Appendix E of USDOT 1050.2A Standard Title VI Assurances) During the performance of this contract, the Contractor, for itself, its assignees, and successors in the interest (hereinafter referred to as the "Contractor") agrees to comply with the following non- discrimination statutes and authorities; including but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration's Non -Discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898 , Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Person with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure the LEP person have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). Page 10 of 103 Packet Pg. 13 4.1.a GENERAL CONDITIONS ARTICLE 1 DEFINITIONS .................. 1.1 Definition of Terms 1.1.1 JOC Specific Definition of Terms 1.2 Definitions/Abbreviations ARTICLE 2 PRELIMINARY MATTERS............ 2.1 City Operations 2.2 Starting the Job Order (Notice to Proceed) 2.3 Job Order Completion Time 2.4 Extension of Time 2.5 Before Starting Work 2.6 Preconstruction Conference 14 26 ARTICLE 3 CONTRACT DOCUMENTS: INTENT, CORRELATION, EXECUTION OF AND OWNERSHIP OF CONTRACTDOCUMENTS.........................................................................................................................29 3.1 Intent 3.2 Correlation of the Contract Documents 3.3 No Warranties by the City ARTICLE 4 PHYSICAL CONDITIONS AND REFERENCE POINTS....................................................31 4.1 Unforeseen Physical Conditions ARTICLE 5 BONDS AND INSURANCE...............................................................................................32 5.1 Performance Bond 5.2 Payment Bond 5.3 Contractor's Liability Insurance 5.4 Contractor Pollution Liability 5.5 Waiver of Rights 5.6 Receipt and Application of Property Insurance Proceeds ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES..............................................................................43 6.1 Examination of the Site of Work and Detailed Scope of Work 6.2 Error, Inconsistency, Omission or Variance in the Contract Documents 6.3 Supervision 6.4 Labor, Materials, and Equipment 6.5 Equivalent Materials and Equipment, "or Equal" 6.6 Disposal of Demolished Materials 6.7 Subcontractors and Sub -Subcontractors 6.8 Patent Fees and Royalties 6.9 Laws and Regulations 6.10 Taxes 6.11 Use of Premises 6.12 Record Documents 6.13 Safety and Protection 6.14 Emergencies 6.15 Shop Drawings and Samples 6.16 Continuing the Work 6.17 Warranties 6.19 Progress Schedule 6.20 On -Site Documents 6.21 Working Drawings, Product Data, Samples, and Other Submittals 6.22 Cutting, Fitting and Patching of Work Page 11 of 103 Packet Pg. 14 4.1.a 6.23 Inspection of the Work 6.24 Uncovering of Work 6.25 Correction of Work 6.26 Responsibility for Work 6.27 Hazardous Materials 6.28 Clean-up 6.29 Protection of Work During Suspension 6.30 Notice and Detailed Breakdown of Claim 6.32 Prerequisite to Suit 6.33 Indemnification ARTICLE 7 ADDITIONAL WORK AND WORK BY OTHERS............................................................. 61 7.1 Additional Work ARTICLE 8 CITY'S RESPONSIBILITIES............................................................................................. 62 8.1 Authority of the Project Manager 8.2 Administration of the Contract 8.3 City's Right to Carry Out Other Work 8.4 Officers and Employees of the City Have No Personal Liability 8.5 Gratuities 8.6 Service of Notices on the Contractor ARTICLE 9 PROJECT MANAGER'S STATUS DURING WORK ........................................................ 64 9.1 City's Representative 9.2 Clarifications and Interpretations 9.3 Rejecting Defective Work 9.5 Decisions on Disagreements 9.6 Limitations on Project Manager's Responsibilities 9.8 Requests for Instruction ARTICLE 10 CHANGES IN THE WORK .............. 10.1 Changes to Contract Documents 10.2 Change Order and Supplemental Job Order 10.3 Job Order Price 10.4 Job Order Completion Time ................................................................................67 ARTICLE 11 WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK.....................................................................................................70 11.1 Warranty and Guarantee 11.2 Access to Work 11.3 Tests and Inspections 11.4 City May Stop the Work 11.5 Correction or Removal of Defective Work 11.6 Acceptance of Defective Work 11.7 City May Correct Defective Work ARTICLE 12 PAYMENTS TO CONTRACTOR AND COMPLETION.. 12.1 Application for Progress Payment 12.2 Contractor's Warranty of Title 12.3 Review of Applications for Progress Payment 12.4 Substantial Completion 12.5 Partial Utilization 12.6 Final Inspection ................................................ 73 3 Q Page 12 of 103 Packet Pg. 15 4.1.a 12.7 Final Application for Payment 12.8 Final Payment and Acceptance 12.9 Contractor's Continuing Obligation 12.10 Waiver of Claims ARTICLE 13 SUSPENSION OF WORK AND TERMINATION.............................................................. 77 13.1 Suspend the Work 13.2 City May Terminate 13.3 Termination for Convenience 13.4 Minimum Contract Value Not Achieved 13.5 Contractor may Stop Work or Terminate T ARTICLE15 MISCELLANEOUS..................................................................................................................80 U 15.1 General Requirements L 15.2 Giving Notice o 15.3 Computation of Time v 15.4 Non -Discrimination 15.5 Contractor Selection 15.6 Contractor's Personnel 0 0 ARTICLE 16 JOC PROCEDURE FOR ORDERING WORK82 E .................................................................. 16.1 Initiation of a Job Order. Q 16.2 Preparation of the Price Proposal 16.3 Review of the Job Order Proposal and Issuance of the Job Order ARTICLE 17 ENR CCI ADJUSTMENT OF THE ADJUSTMENT FACTORS ......................................... 89 ARTICLE 18 SOFTWARE, JOC SYSTEM LICENSE, AND COOPERATIVE PURCHASING ............... 91 18.1 JOC System License 18.2 Cooperative Purchasing ARTICLE 19 COMPLIANCE WITH THE JOC RCW REQUIREMENTS ...... 19.1 Contractor's Responsibility 19.2 Maximum Job Order Value 19.3 Adjustment Factors and Construction Task Catalog® 19.4 Prevailing Wage Rates to be Paid 19.5 Executed OMWBE Plan 19.6 Subcontracting 19.7 Public Records 19.8 Audits and Retention of Records 19.9 Public Notice Requirements 19.10 Public Inspection of Certain Records -Protection of Trade Secrets ..................................... 92 Page 13 of 103 Packet Pg. 16 4.1.a ARTICLE 1 DEFINITIONS 1.1 Definition of Terms: Wherever used in these General Conditions or in the other Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof. Acceptance The official act of the City, Contract Administrator, or Project Manager as described in Article 12. y r Addenda Written or graphic instruments issued prior to the submittal of L Contractor Proposals which clarify, correct or change the o Proposal documents or the Contract Documents L) L Contract (or Job The written agreement between the City and the Contractor. o Order Contract) o E L The form accepted by Project Manager which is to be used by a Application for Contractor in requesting progress or final payment and which is Payment to include such supporting documentation as is required by the o Contract Documents. 2 Bonds Performance and payment bonds and other instruments of security. Contract The authorized representative of the City who is assigned Administrator immediate charge of the administration of the Job Order Contract. Contract Documents All of the documents constituting the Contract. Contractor The individual, firm, partnership, corporation or combination thereof with whom City has entered into the Contract. City The City of Edmonds. Depending on the context, the term City may also include all of the City's elected officials, officers, employees and other authorized representatives Page 14 of 103 Packet Pg. 17 4.1.a Day Unless otherwise designated in the Contract Documents, a calendar day of twenty-four (24) hours measured from midnight to the next midnight. Defective An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents or does not meet the requirements of any inspection, test or approval referred to in the Contract Documents, or has been damaged prior to Project Manager's recommendation of final payment. Drawinas The drawings which show the character and scope of the Work to be performed and which have been prepared or approved by Project Manager assigned to the Job order and which are referred to in the Detailed Scope of Work. Effective Date of the The date indicated in the Contract on which it becomes Contract effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver. Federally Funded A Job Order designated by the City as federally funded, in Job Order which case the Job Order includes the Federal Contract Clauses. Federal Contract The current federal contract clauses determined by the City to Clauses be applicable to a Federally Funded Job Order. Page 15 of 103 Packet Pg. 18 4.1.a Field Order A written order issued by Project Manager which orders minor changes in the Work in accordance with section 10.1.5, but which does not involve a change in the Price or the Completion Time. Final Completion Occurs when all requirements have been completed as stated in section 2.3 and Article 12. Final Payment The payment to be made to the Contractor in accordance with Article 12. Hazardous Materials The term "Hazardous Materials" means any hazardous or toxic substances, materials and wastes listed in the United States Department of Transportation Hazardous Materials Table 49 CFR 172.101 or listed by the Environmental Protection Agency as hazardous substances in 40 CFR Part 302 and any amendments thereto, and any substances, materials or wastes that are or become regulated under federal, state or local law. Hazardous Materials or substances shall also include, but not be limited to: regulated substances, petroleum products, pollutants, and any and all other environmental contamination as defined by, and in any and all federal. State and/or local laws, rules, regulations, ordinances or statutes now existing or hereinafter enacted relating to air, soil, water, environmental or health and safety conditions. Inspector The City's authorized representative assigned to make inspections of the Contractor's performance of the Work. Liquidated Damages The amount prescribed herein to be paid to the City, or to be deducted from any payments due or to become due the Contractor, for each day's delay in completing the whole or any specified portion of the work beyond the time allowed in the Job Order. At the sole discretion of the City, liquidated damages will be assessed, if at all, on a Job Order -by -Job Order basis. For each calendar day that the Detailed Scope of Work for a Job Order shall remain incomplete after the Job Order Completion Time, the amount per calendar day specified in following table, Schedule of Liquidated Damages, will be deducted from any money due the Contractor, not as a penalty but as liquidated damages; provided however that due account shall be taken of any adjustment of the Job Order Completion Time as provided for elsewhere in this Contract. Page 16 of 103 Packet Pg. 19 4.1.a Value of Job Order Liquidated Damages $0 to $10,000 $100/Day $10,001 to $50,000 $250/Day Over $50,000 $500/Day Notice of Intent to The written notice by City identifying the highest ranked Award Proposers and indicating that the City intends to award a contract to that Proposer(s) or enter into negotiations with such Proposer(s). Page 17 of 103 Packet Pg. 20 4.1.a Notice to Proceed A written notice given by City to Contractor fixing the date on Which the start of Work will commence and on which Contractor shall start to perform its obligation within the completion time under the Contract Documents. Payment Bond The form of security approved by the City, furnished by the Contractor and its surety guaranteeing the complete and faithful payment of all labor, material, equipment, and any other services provided to the Work. Performance Bond The form of security approved by the City, furnished by the Contractor and its surety guaranteeing the complete and faithful performance of the construction of the Work as specified in the Contract Documents. Plans The concept or mental formulation for the Work. The plans may be represented graphically by drawings, by the written words within the Contract Documents, or both. City Furnished Materials or equipment furnished by the City which is to be Materials or incorporated into the Work by the Contractor. Equipment Page 18 of 103 Packet Pg. 21 4.1.a Product Data The illustrations, standard schedules, performance charts, brochures, diagrams, and other information furnished by the Contractor to illustrate a material, product, or system. Project The collective improvements to be constructed by the Contractor pursuant to issuance of a Job order. A Project will consist of one Job order and any Supplemental Job Orders issued. Project Manager The authorized representative of the City who is assigned immediate charge of the work of the project. Pr000sal The offer or proposal of the Contractor submitted in response to the City's Request For Proposal for the selection of Contractor(s). Usually referred to as the Contractor's Proposal Pr000ser Any individual, firm, partnership, corporation or combination thereof formally submitting a proposal for the work contemplated, or any portion thereof, acting directly or through an authorized representative. Provide The all-inclusive actions required to furnish, install, connect, adjust, test, and make ready for use or occupancy. Punch List Shall have the meanina set forth in Article 12. RFP The Request for Proposal issued by the City for the selection of the Contractor(s). Samples Physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. Schedule of Prices Means the Unit Prices set forth in the Contract Documents. Shop Drawings All drawings, diagrams, illustrations, brochures, standard schedules, performance charts, instructions, and other data which are specifically prepared by Contractor, a Subcontractor, manufacturer, fabricator, supplier or distributor to illustrate some portion of the Work, material or equipment. Specifications Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, performance requirements and workmanship as applied to the Work and certain administrative details applicable thereto. Page 19 of 103 Packet Pg. 22 4.1.a Subcontractor An individual, firm, or corporation having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the site. Sub -Subcontractor A Sub -Subcontractor is a business entity that has an agreement with a Subcontractor to perform a portion of the Work. The term Sub -Subcontractor means and includes the Sub -Subcontractor at all tiers. Substantial The Work or a specified part thereof has progressed to the Completion point where, in the opinion of Project Manager as evidenced by his/her certificate of Substantial Completion, the Detailed Scope of Work is sufficiently complete, in accordance with the Contract Documents, so that the Work or specified part can be utilized for the purposes for which it was intended; or if there be no such certificate issued, when final payment is due in accordance with section 12.4. The terms "substantially complete" and "substantially completed" as applied to any Work refer to Substantial Completion. Supplementary That portion of the Contract Documents that amends or Conditions supplements these General Conditions. Supplier A vendor, supplier, distributor, or materialman other than the Prime Contractor, which supplies material or equipment used in the performance of the Work. Page 20 of 103 Packet Pg. 23 4.1.a Suretv The company or association which is bound with and for the Contractor for the acceptable performance of the Contract and for its payment of all obligations arising out of the Contract Titles or Headings The titles or headings of the sections, divisions, parts, articles, paragraphs, or subparagraphs of the specifications are intended only for convenience of reference and shall not be considered as having any bearing on the interpretation of the text. Unit Prices The price published in the Construction Task Catalog° for a specific construction or construction related work task. Unit Prices for new Pre -priced Tasks can be established during the course of the Contract and added to the Construction Task Catalogs°. Each Unit Price is comprised of labor, equipment, and material costs to accomplish that specific Pre -priced Task Work The entire completed project or the various separately identifiable parts required to be furnished in accordance with the Contract Documents. Work is the result of performing services, furnishing labor, and furnishing and incorporating materials and equipment into the project, all as required by the Contract Documents. 1.1.1 Job Order Contracting Specific Definition of Terms: Adjustment Factor A competitively bid adjustment to be applied to the unit prices listed in the Construction Task Catalog°. Also known as a "coefficient." Base Term The initial period of the Contract and does not include any Option Terms. Construction Task Catalog° A comprehensive listing of construction related tasks together with a specific unit of measure and a published Unit Price. Detailed Scope of Work A document setting forth the work the Contractor is obligated to complete for a particular Job Order. Estimated Annual Value An estimate of the value of Job Orders that could be issued to the Contractor each year. Job Order A written order issued by the City, such as a Purchase Order, requiring the Contractor to complete the Detailed Scope of Work Page 21 of 103 Packet Pg. 24 4.1.a within the Job Order Completion Time for the Order Price. A project may consist of one or more Job Orders with one or more Supplemental Job Orders. [Job Order] CompletionTime The time within which the Contractor must complete the Detailed Scope of Work. [Job Order] Price The value of the approved Job Order Price Proposal and the amount the Contractor will be paid for completing a Job Order. [Job Orderl Price Proposal A price proposal prepared by the Contractor that includes the Pre -priced Tasks, Non-Prepriced Tasks, L quantities and appropriate Adjustment Factors required o to complete the Detailed Scope of Work. L) Job Order Proposal A set of documents including at least: (a) Job Order L o Price Proposal; (b) required drawings or sketches; (c) 0 list of anticipated Subcontractors and Materialmen; (d) Construction schedule; and (e) other requested documents. Q Joint Scope Meeting A site meeting to discuss the work before the Detailed c Scope of Work is finalized. L Minimum Contract Value The minimum value of Job orders that the Contractor is N guaranteed the opportunity to perform under this c C Contract_ U Non-Prepriced Task A task that is not set forth in the Construction Task Catalog®. �° Normal Working Hours (General Facilities) Includes the hours from 7:00 a.m. to 4:00 p.m. Monday through Q Friday, except for City Holidays in Facilities classified as General by the City of Edmonds. Normal Working Hours U (Secured Facilities) Includes the hours from 7:00 a.m. to 4:00 p.m. Monday a through Friday, except for City Holidays in Facilities classified as Secured by the City of Edmonds. Notice to Proceed A written notice issued by the City directing the Contractor to proceed with construction activities to complete the Job Order. Option Term An additional period of time beyond the Contract Term which extends the termination date of the Contract. Page 22 of 103 Packet Pg. 25 4.1.a Other than Normal Working Hours (General Facilities) Includes the hours of 4:01 p.m. to 6:59 a.m., Monday to Friday and all day Saturday, Sunday, and City Holidays in Facilities classified as General by the City of Edmonds. Other than Normal Working Hours L (Secured Facilities) Includes the hours of 4:01 p.m. to 6:59 a.m., Monday to c 0 U Friday and all day Saturday, Sunday, and City Holidays in Facilities classified as Secured by the City of o Edmonds. 0 0 E L Proposal Criteria Figure The amount determined in the Proposal Criteria Figure Q Calculation section of the Price Proposal, which is used for the purposes of determining the lowest price. 0 Pre -priced Task A task described in and for which a unit price is set forth i in the Construction Task Catalog®. 0 Request for Proposal A written request to the Contractor to prepare a Proposal for the Detailed Scope of Work referenced E therein. _ 0 U_ Supplemental Job Order A secondary Job Order developed after the initial Job Order has been issued for the purpose of changing, deleting, or adding work to the initial Detailed Scope of E Work, or changing the Job Order Completion Time. Technical Specifications The written requirements for materials, equipment, a systems, standards and workmanship for the Work, 4) and performance of related services. E Unit Price The price published in the Construction Task Catalog® for a specific construction or construction related work task. Unit Prices for new Pre -priced Tasks can be established during the course of the Contract and added to the Construction Task Catalogs®. Each Unit Price is comprised of labor, equipment, and material costs to accomplish that specific Pre -priced Task. Work All materials, labor and use of tools, equipment, and services necessary by the Contractor and/or Subcontractor to complete the Job Order. Page 23 of 103 Packet Pg. 26 4.1.a 1.2 Definitions/Abbreviations AAR Association of American Railroads ACI American Concrete Institute AISC American Institute of Steel Construction ANSI American National Standards Institute APA American Plywood Association API American Petroleum Institute ARA American Railway Association AREA American Railway Engineering Association ASCE American Society of Civil Engineers ASHRAE American Society of Heating, Refrigeration and Air Conditioning Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials AWS American Welding Society COS City of Edmonds CPM Critical Path Method of Project Scheduling CRSI Concrete Reinforcing Steel Institute FAA Federal Aviation Administration FHWA Federal Highway Administration FM Factory Mutual FS Federal Specification FTA Federal Transit Administration IEEE Institute of Electrical and Electronics Engineers ISO Insurance Service Office JIC Joint Industrial Council NAAMM National Association of Architectural Metal Manufacturers NBFU National Board of Fire Underwriters NEC National Electrical Code NEMA National Electrical Manufacturer's Association NESC National Electrical Safety Code NIOSH National Institute of Occupational Safety and Health NFPA National Fire Protection Association OFCCP Office of Federal Contract Compliance Programs OSHA Occupational Safety and Health Act y c 0 U L 0 M 0 L Page 24 of 103 Packet Pg. 27 4.1.a PCA Portland Cement Association PSCAAPCA Puget Sound Clean Air Pollution Control Agency SAE Society of Automotive Engineers SMACNA Sheet Metal and Air Conditioning Contractors National Association SSPC Steel Structures Painting Council SWI Steel Window Institute UFC Uniform Fire Code UL Underwriter's Laboratory U WISHA Washington Industrial Safety & Health Act Administration 0 U L L END ARTICLE 1 0 0 L 3 Q Page 25 of 103 Packet Pg. 28 4.1.a ARTICLE 2 PRELIMINARY MATTERS 2.1 City Operations The City is an operating facility which will continue in full operation throughout the term of this Contract. Where facility operations conflict with those of the Contractor, the operations of the facility will take precedence over those of the Contractor. It shall be the sole responsibility of the Contractor to schedule and coordinate its activities with those of the facility to assure minimum disruption of facility operations. 2.2 Starting the Job Order (Notice to Proceed) The Contractor shall show evidence that work has commenced on the Job Order within seven (7) days from the effective date of the Notice to Proceed. Work in this case is not limited to physical work at the project site. Work started prior to the effective date stated in the Notice to Proceed shall be at the Contractor's risk. 2.3 Job Order Completion Time 2.3.1 The Job Order Completion Time will commence to run on the effective date stated in the Notice to Proceed. The City Contract Administrator will transmit an executed copy of the Job Order to the Contractor as well as a Notice to Proceed. 2.3.2 The Job Order Completion Time is that period of time allotted in the Job Order, as adjusted, for the Contractor to achieve Substantial and/or Final Completion of the Detailed Scope of Work. 2.3.3 The term "day" as used in the Contract Documents shall mean a calendar day unless otherwise specifically designated. 2.3.4 Substantial Completion occurs when the City can use the Work for the use for which it is intended, and when all required documentation has been properly submitted to the City in accordance with the Job Order. Such documentation shall include but is not necessarily limited to: a. Maintenance and Operations manuals; b. Warranties; and c. Submittals required by the Specifications. 2.3.5 Final Completion occurs when all requirements of the Job Order and Contract Documents have been properly and completely fulfilled including but not limited to: a. Completion of re -inspection and City approval of all Punch List items; b. Submittal of final invoice and approval by the Contract Administrator and Project Manager; c. Submittal of all properly completed as -built record drawings; and d. Submittal of any other documents required by the Job Order. Page 26 of 103 Packet Pg. 29 4.1.a 2.3.6 Final Acceptance is the formal action of the City accepting the Work as complete. 2.3.7 Progress and Completion a. All time limits stated in the Job Orders are of the essence of this Contract. b. The Contractor shall begin the Work on the date indicated in the Notice to Proceed and shall diligently prosecute the Work with adequate equipment and forces in order to bring the Work to completion within the Job Order Completion Time. 2.4 Extension of Time Any extension of Job Order Completion Time must have the written approval of the Project Manager/City and must conform to the procedures set forth in Article 10.4. 2.5 Before Starting Work 2.5.1 Before undertaking each part of the Work, the Contractor shall carefully study and compare the Detailed Scope of Work and check and verify pertinent figures shown thereon and all applicable field measurements. The Contractor shall promptly report in writing to the Project Manager any conflict, error or discrepancy which the Contractor may discover; however, the Contractor shall not be liable to the City for failure to report any conflict, error or discrepancy in the Detailed Scope of Work, Drawings or Specifications, unless the Contractor had actual knowledge thereof or should reasonably have known thereof. 2.5.2 If requested, within five (5) days after the effective date of the Notice to Proceed and prior to start of Work (unless otherwise specified in the General Requirements), the Contractor shall submit to the Project Manager for review a preliminary Schedule of the Values of the work. Each bid item shall be broken down to its basic elements. The cost breakdown for both lump sum and unit price estimates shall include: a. Labor; b. Materials; c. Equipment; d. Overhead, profit and taxes; e. Other factors; f. Time required. 2.5.3 If requested, within ten (10) days after the effective date of the Notice to Proceed and prior to start of Work, unless otherwise specified in the General Requirements, the Contractor is to submit to the Project Manager for review an estimated Progress Schedule indicating the starting and completion dates of the various stages of the Work and a Preliminary Schedule of Shop Drawings submissions. The Schedule should include a bar chart. The Contractor may use a commercial scheduling program such as the "Microsoft Project" or equal. All submissions of schedule Page 27 of 103 Packet Pg. 30 4.1.a information to the Project Manager or other City representatives are to be provided in hard copy format and electronic format. 2.6 Preconstruction Conference Within seven (7) days after the effective date of the Job Order, but before the Contractor starts the Work at the site, unless otherwise specified in the Contract Documents, a conference will be held with the Contractor, Project Manager, Contract Administrator and others as determined by the Project Manager for review of the schedules to establish procedures for handling Shop Drawings and other submittals, for processing Applications for Payment, and to establish a working understanding among the parties as to the Work. END ARTICLE 2 Page 28 of 103 Packet Pg. 31 4.1.a ARTICLE 3 CONTRACT DOCUMENTS: INTENT, CORRELATION, EXECUTION OF AND OWNERSHIP OF CONTRACT DOCUMENTS 3.1 Intent 3.1.1 The Contract Documents comprise the entire Contract between the City and the Contractor concerning the Work. 3.1.2 The Detailed Scope of Work is complementary; what is called for by one is as binding as if called for by all. 3.1.3 It is the intent of the Detailed Scope of Work to describe a complete Project or part thereof or performance requirements to be completed in accordance with the Contract Documents. Any Work that may reasonably be inferred from the Detailed Scope of Work and the Contractor's Price Proposal as being required to produce the intended result shall be supplied whether or not it is specifically called for. Words, which have a well-known technical or trade meaning and are used to describe Work, materials or equipment, shall be interpreted in accordance with such meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the code of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual or code in effect at the time of Price Proposal Submittal or on the effective date of the Job Order. However, no provision of any referenced standard specification, manual or code whether or not specifically incorporated by reference in the Detailed Scope of Work shall change the duties and responsibilities of the City or the Contractor, or any of their agents or employees from those set forth in the Contract Documents. Clarifications and interpretations of the Detailed Scope of Work shall be issued by the Project Manager as provided for in section 9.2. 3.2 Correlation of the Contract Documents 3.2.1 Each Contract Document is an essential part of the Contract between the City and the Contractor. The Contract Documents are intended to be complementary and prescribe and provide for all Work required by the Job Orders. Anything mentioned in the Specifications and not shown in the Detailed Scope of Work, or shown in the Drawings and not mentioned in the Specifications, shall be of like effect as if shown or mentioned in both. Any Work, materials or equipment that has not been specifically included in the Detailed Scope of Work but which is reasonably required to produce the intended result shall be provided by the Contractor as though it had been specifically included. 3.2.2 If there are discrepancies between the various Contract Documents, Specifications shall govern over Conditions and Drawings, Drawings shall govern over Conditions, larger scale drawings shall govern over smaller scale drawings, Supplementary Conditions shall govern over General Conditions, computed dimensions shall govern over scaled dimensions, and specific descriptions shall govern over general ones. Page 29 of 103 Packet Pg. 32 4.1.a 3.2.3 In the event of a conflict between the Detailed Scope of Work or the Contract Documents and applicable laws, codes, ordinances, regulations or orders of governmental authorities having jurisdiction over the Work or any portion thereof, or in the event of any conflict between such applicable laws, codes, ordinances, regulations, or orders, the most stringent requirements of any of the above shall govern and be considered as a part of this Contract in order to afford the City the maximum benefits thereof. 3.3 No Warranties by the City 3.3.1 No information derived from inspection of records or reports of investigation concerning the Work or conditions at the site(s) of the Work made or provided by the City will in any way relieve the Contractor from its responsibility for properly performing its obligations under the Contract Documents. Such records and reports are provided solely for the convenience of the Contractor with no warranties whatsoever, express or implied, by the City. Such records and reports are not part of the Contract Documents. The Contractor shall make its own conclusions and interpretations from the data supplied, information available from other sources, and the Contractor's own observations. 3.3.2 The Contract Documents will be governed by the laws of the State of Washington END ARTICLE 3 Page 30 of 103 Packet Pg. 33 4.1.a ARTICLE 4 PHYSICAL CONDITIONS AND REFERENCE POINTS 4.1 Unforeseen Physical Conditions The Contractor shall promptly notify the Project Manager in writing of any latent physical conditions at the site or in an existing structure differing materially from those indicated or referred to in the Detailed Scope of Work. The Project Manager will promptly review those conditions. If the Project Manager finds that there are latent physical conditions which differ materially from those intended in the Detailed Scope of Work, the Project Manager will prepare a Supplementary Job Order incorporating modifications to plans and specifications as necessary to proceed with and complete the Work. END ARTICLE 4 Page 31 of 103 Packet Pg. 34 4.1.a ARTICLE 5 BONDS AND INSURANCE 5.1 Performance Bond The Contractor shall furnish a duly executed Performance Bond upon a form provided by the City within ten (10) calendar days following receipt of the Notice of Award. The Bond shall be executed by a licensed surety which is registered with the Washington State Insurance Commissioner and the surety's name shall appear in the current Authorized Insurance Company List for the State of Washington published by the Office of the Insurance Commissioner, and must be approved by the U.S. Department of Treasury as evidenced by a listing in the Federal Register. In addition, the surety must be rated "A-, FSC (6)" or higher by A.M. Best Rating Guide. The penal amount of the bond shall be in an amount equal to the amount stated in the Proposal Requirements and conditioned upon the faithful performance of the Contract by the Contractor. If the Surety on any Performance Bond furnished by the Contractor is declared bankrupt or becomes insolvent, or its right to do business is terminated in the state of Washington, or it ceases to meet the requirements as stated above, the Contractor shall within five (5) days thereafter substitute another Bond and Surety. The City reserves the right to approve or reject any substitute Bond and Surety. The Performance Bond will initially be in the penal sum equal to Two Million Dollars ($2,000,000). In the event the parties agree to exercise the option to extend the Contract, or if the cumulative amount of Work issued and not yet completed and accepted exceeds such amount, the Contractor shall deliver a new Performance Bond or a rider as required by the City. Additionally, the Contractor shall also provide a signed "Letter of Bondability" stating that the Contractor is able to bond to the possible increased Contract Value of Four Million Dollars ($4,000,000). For a Federally Funded Work Order, the Contractor may be required to submit an additional performance bond in accordance with the applicable Federal Contract Clauses 5.2 Payment Bond The Contractor shall also furnish a duly executed Payment Bond upon a form provided by the City, within ten (10) calendar days following receipt of the Notice of Award. The Bond shall be executed by a licensed surety which is registered with the Washington State Insurance Commissioner and the surety's name shall appear in the current Authorized Insurance Company List in the State of Washington published by the Office of the Insurance Commissioner, and must be approved by the U.S. Department of Treasury as evidenced by a listing in the Federal Register. In addition, the surety must be rated "A-, FSC (6)" or higher by A.M. Best Rating Guide. The penal amount of the bond shall be in the amount stated in the Proposal Requirements and conditioned upon the payment by the Contractor to all laborers, mechanics, Subcontractors, suppliers, and all persons who shall supply for the performance of the Work covered by this Contract. If the Surety on any Payment Bond furnished by the Contractor is declared bankrupt or becomes insolvent, or its right to do business is terminated in the state of Washington, or Page 32 of 103 Packet Pg. 35 4.1.a 5.3 it ceases to meet the requirements as stated above, the Contractor shall within five (5) days thereafter substitute another Bond and Surety. The City reserves the right to approve or reject any substitute Bond and Surety. The Payment Bond will initially be in the penal sum equal to Two Million Dollars ($2,000,000). In the event the parties agree to exercise the option to extend the Contract, or if the cumulative amount of Work issued and not yet completed and accepted exceeds such amount, the Contractor shall deliver a new Payment Bond or a rider as required by the City. Additionally, The Contractor shall also provide a signed "Letter of Bondability" stating that the Contractor is able to bond to the possible increased Contract Value of Four Million Dollars ($4,000,000). For a Federally Funded Work Order, the Contractor may be required to submit an additional payment bond in accordance with the applicable Federal Contract Clauses. Contractor's Liability Insurance 5.3.1 The Contractor shall purchase and maintain such commercial general liability and other insurance as will provide protection from claims set forth below which may arise out of or result from the Contractor's performance of the Work and the Contractor's other obligations under the Contract Documents, whether such performance is by the Contractor, by any Subcontractor, by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. a. Commercial General Liability Insurance on an Occurrence Basis in an amount not less than Two Million Dollars ($2,000,000) per occurrence and at least Five Million Dollars ($5,000,000) in the annual aggregate, including but not limited to: 1. Bodily Injury Liability; 2. Property Damage Liability (to include explosion, collapse and underground); 3. Blanket Contractual Liability; 4. Premises/Operations (including off -site operations); 5. Broad Form Property Damage Liability; 6. Products: Completed Operations Liability; 7. Personal Injury Liability; 8. Liability for Property of Others in the Care, Custody and Control of the Contractor. Claims Covered: The Contractor shall purchase and maintain commercial general liability insurance, covering all operations by or on behalf of the Contractor, on an occurrence basis, against: 1. claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees. 2. claims for damages insured by reasonably available personal injury liability coverage. Page 33 of 103 Packet Pg. 36 4.1.a 3. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefrom. Form and Content: The Contractor's commercial liability policy shall be written on a 1996 (or later) ISO commercial general liability form (occurrence form) and include the following coverages and endorsements: 1. Products and completed operations coverage: a. Such insurance shall be maintained for three (3) years after final payment. b. The Contractor shall furnish the City and each other additional insured (as identified in the Supplementary Conditions or elsewhere in the Contract) evidence of continuation of such insurance at final payment and three (3) years thereafter. 2. Blanket contractual liability coverage, to the extent permitted by law, including but not limited to coverage of the Contractor's contractual indemnity obligations in Section 6.32 ("Indemnification"). 3. Broad form property damage coverage. 4. Severability of interest. 5. Underground, explosion, and collapse coverage. 6. Personal injury coverage. 7. Additional insured endorsements that include both ongoing operations and products and completed operations coverage through ISO Endorsements CG 20 10 10 01 and CG 20 37 10 01 (together); or CG 20 10 07 04 and CG 20 37 07 04 (together); or their equivalent. 8. For design professional additional insureds, ISO Endorsement CG 20 32 07 04, "Additional Insured —Engineers, Architects or Surveyors Not Engaged by the Named Insured" or its equivalent. Commercial General Liability Insurance shall be written on Insurance Services Office ("ISO") occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop gap liability, independent contractors, products- completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The City shall be named an insured under the Contractor's Commercial General Liability insurance policy with respect to the Work performed for the City using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage b. Comprehensive Automobile Liability Insurance: The Contractor shall purchase and maintain automobile liability insurance against claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance, or use of any motor vehicle. The automobile liability policy shall be written on an occurrence basis. The Contractor shall provide proof of insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence, including but not limited to: 1. Bodily Injury Liability; 2. Property Damage Liability; 3. Personal Injury Liability; 4. Owned and Non -Owned Auto Liability; 5. Hired and Borrowed Auto Liability. Page 34 of 103 Packet Pg. 37 4.1.a Comprehensive Automobile Liability Insurance covering all owned, non -owned, hired and leased vehicles as well as employee vehicles utilized in performance or the Work or at the Work site shall be provided. Coverage shall be written on ISO form CA 00 01 or a substitute form providing equivalent liability coverage. The insurance policy shall be endorsed to provide contractual liability coverage. c. Worker's Compensation as required by Washington law and Employer's Liability Insurance (Stop Gap) with limits not less than One Million Dollars ($1,000,000) per occurrence. If the City authorizes sublet work, the Contractor shall require each subcontractor to provide Worker's Compensation Insurance for its employees, unless the Contractor covers such employees. The Contractor shall purchase and maintain workers' compensation and employer's liability insurance for: 1. claims under workers' compensation, disability benefits, and other similar employee benefit acts; 2. United States Longshoreman and Harbor Workers' Compensation Act and Jones Act coverage (if applicable); 3. claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees (by stop -gap endorsement in monopolist worker's compensation states); and 4. Foreign voluntary worker compensation (if applicable). The Contractor shall comply with the following conditions and procure and keep in force during the term of this Contract, at the Contractor's own cost and expense, the policies of insurance with companies authorized to do business in the State of Washington, which are rated at least "A" or better and with a numerical rating of no less than VI I, by A.M. Best Company and which are acceptable to the City. The Contractor's insurance coverage shall be primary insurance as respect to the City. Any insurance, self-insurance or other coverage maintained by the City shall be for the protection of the City and excess to the Contractor's insurance and shall not contribute with it. The above liability policies shall be endorsed to contain a provision that the policy shall not be canceled or materially changed without thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of the Contractor to furnish the required insurance during the term of this Contract. The Insurer or his/her agent will furnish to the Contract Administrator upon request, prior to any Work being performed, a copy of any policy cited above, certified to be a true and complete copy of the original. The Contractor shall provide the Contract Administrator, prior to any Work being performed, a Certificate of Insurance and additional insured endorsement(s) acceptable to the City Attorney evidencing the above -required insurance(s) and naming the City of Edmonds, its officers, employees and agents as Additional Insureds on the Commercial General Liability Insurance policy and the Business Automobile Liability Insurance policy with respect to the operations performed and services provided under this Contract; and that such insurance shall apply as primary insurance on behalf of such Additional Insureds. The City shall be named as an Additional Insured by endorsement using ISO Form CG 2010 or equivalent. Receipt by the City of any certificate showing less coverage than required is not a waiver of the Contractor's obligations to fulfill the requirements. Page 35 of 103 Packet Pg. 38 4.1.a 5.3.2 Contractor's Insurance for Other Losses. The Contractor shall assume full responsibility for all loss or damage from any cause whatsoever to any tools, the Contractor's employee owned tools, machinery, equipment or motor vehicles owned or rented by the Contractor, or the Contractor's agents, suppliers or subcontractors as well as to any temporary structures, scaffolding and protective fences. 5.3.3 General Provisions a. The City and the Contractor shall obtain and maintain insurance as required in this Section and in the Supplementary Conditions. b. All insurance required by the Contract to be purchased and maintained by the City or the Contractor shall be obtained from insurance companies that are duly licensed or 141 authorized, in the state orjurisdiction in which the Project is located, to issue insurance L policies for the required limits and coverages. Unless a different standard is indicated in o the Supplementary Conditions, all companies that provide insurance policies required U under this Contract shall have an A.M. Best rating of A-VII or better. c. The Contractor shall deliver to the City, with copies to each named insured and o additional insured (as identified in this Section, in the Supplementary Conditions, or c elsewhere in the Contract), certificates of insurance establishing that the Contractor has obtained and is maintaining the policies, coverages, and endorsements required by 3 the Contract. Upon request by the City or any other insured, the Contractor shall also Q furnish other evidence of such required insurance, including but not limited to copies of r- policies and endorsements, and documentation of applicable self -insured retentions W and deductibles. The Contractor may block out (redact) any confidential premium or pricing information contained in any policy or endorsement furnished under this provision. 0 d. The City shall deliver to the Contractor, with copies to each named insured and E additional insured (as identified in this Section, the Supplementary Conditions, or `o elsewhere in the Contract), certificates of insurance establishing that the City has obtained and is maintaining the policies, coverages, and endorsements required of the City by the Contract (if any). Upon request by the Contractor or any other insured, the City shall also provide other evidence of such required insurance (if any), including but not limited to copies of policies and endorsements, and documentation of applicable self -insured retentions and deductibles. The City may block out (redact) any a confidential premium or pricing information contained in any policy or endorsement furnished under this provision. E e. Failure of the City or the Contractor to demand such certificates or other evidence of U the other party's full compliance with these insurance requirements, or failure of the a City or the Contractor to identify a deficiency in compliance from the evidence provided, shall not be construed as a waiver of the other party's obligation to obtain and maintain such insurance. f. If either party does not purchase or maintain all of the insurance required of such party by the Contract, such party shall notify the other party in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. g. If the Contractor has failed to obtain and maintain required insurance, the City may exclude the Contractor from the site, impose an appropriate set-off against payment, and exercise the City's termination rights under Article 13. Page 36 of 103 Packet Pg. 39 4.1.a h. Without prejudice to any other right or remedy, if a party has failed to obtain required insurance, the other party may elect to obtain equivalent insurance to protect such other party's interests at the expense of the party who was required to provide such coverage, and the Contract Price shall be adjusted accordingly. i. The City does not represent that insurance coverage and limits established in this Contract necessarily will be adequate to protect the Contractor or the Contractor's interests. j. The insurance and insurance limits required herein shall not be deemed as a limitation on the Contractor's liability under the indemnities granted to the City and other individuals and entities in the Contract. N r k. General provisions: The policies of insurance required by this Paragraph 5.3.3 shall: L i. include at least the specific coverages provided in this Article; ii. be written for not less than the limits of liability provided in this Article and in the U Supplementary Conditions, or required by Laws or Regulations, whichever is greater; o iii. contain a provision or endorsement that the coverage afforded will not be c canceled, materially changed, or renewal refused until at least ten (10) days prior written notice has been given to the Contractor. Within three (3) days of 3 receipt of any such written notice, the Contractor shall provide a copy of the Q notice to the City and each other insured under the policy; r_ iv. remain in effect at least until final payment (and longer if expressly required in 2 this Article) and at all times thereafter when the Contractor may be correcting, removing, or replacing defective Work as a warranty or correction obligation, or otherwise, or returning to the site to conduct other tasks arising from the Contract Documents; and v. be appropriate for the Work being performed and provide protection from claims `o that may arise out of or result from the Contractor's performance of the Work and the Contractor's other obligations under the Contract Documents, whether it is to be performed by the Contractor, any Subcontractor or Supplier, or by E anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable. vi. The coverage requirements for specific policies of insurance must be met by a such policies, and not by reference to excess or umbrella insurance provided in other policies. E Umbrella or excess liability: The Contractor shall purchase and maintain umbrella or excess liability insurance written over the underlying employer's liability, commercial general liability, and automobile liability insurance described in the paragraphs above. Subject to industry - standard exclusions, the coverage afforded shall follow form as to each and every one of the underlying policies. Contractor's pollution liability insurance: The Contractor shall purchase and maintain a policy covering third -party injury and property damage claims, including clean-up costs, as a result of pollution conditions arising from the Contractor's operations and completed operations. This insurance shall be maintained for no less than three (3) years after final completion. Additional insureds: The Contractor's commercial general liability, automobile liability, umbrella or excess, and pollution liability policies shall include and list as additional insureds the City and the Engineer, and any individuals or entities identified in the Supplementary Page 37 of 103 Packet Pg. 40 4.1.a Conditions; include coverage for the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of all such additional insureds; and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby (including as applicable those arising from both ongoing and completed operations) on a non-contributory basis. The Contractor shall obtain all necessary endorsements to support these requirements. Contractor's professional liability insurance: If the Contractor will provide or furnish professional services under this Contract, through a delegation of professional design services or otherwise, then the Contractor shall be responsible for purchasing and maintaining applicable professional liability insurance. This insurance shall provide protection against claims arising out of performance of professional design or related services, and caused by a negligent error, omission, or act for which the insured party is legally liable. It shall be maintained throughout the duration of the Contract and for a minimum of two (2) years after Substantial Completion. If such professional design services are performed by a Subcontractor, and not by the Contractor itself, then the requirements of this paragraph may be satisfied through the purchasing and maintenance of such insurance by such Subcontractor. 5.3.4 Citv's Liabilitv Insurance a. In addition to the insurance required to be provided by the Contractor under Paragraph 5.3.3, the City, at the City's option, may purchase and maintain at the City's expense the City's own liability insurance as will protect the City against claims which may arise from operations under the Contract Documents. b. The City's liability policies, if any, operate separately and independently from policies required to be provided by the Contractor, and the Contractor cannot rely upon the City's liability policies for any of the Contractor's obligations to the City, the Engineer, or third parties. 5.3.5 Proaerty Insurance a. Builder's Risk: Unless otherwise provided in the Supplementary Conditions and on a Job Order by Job Order basis as required by the City, the Contractor shall purchase and maintain builder's risk insurance upon the Work on a completed value basis, in the amount of the full insurable replacement cost thereof (subject to such deductible amounts as may be provided in the Supplementary Conditions or required by Laws and Regulations). This insurance shall: i. include the City and the Contractor as named insureds, and all Subcontractors, and any individuals or entities required by the Supplementary Conditions to be insured under such builder's risk policy, as insureds or named insureds. For purposes of the remainder of this Paragraph 5.3.5 and any corresponding Supplementary Conditions, the parties required to be insured shall collectively be referred to as "insureds." ii. be written on a builder's risk "all risk" policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire; lightning; windstorm; riot; civil commotion; terrorism; vehicle impact; aircraft; smoke; theft; vandalism and malicious mischief; mechanical breakdown, boiler explosion, and artificially generated electric current; earthquake; volcanic activity, and other earth N 0 U a� EM 0 0 E L M 3 Q Page 38 of 103 Packet Pg. 41 4.1.a movement; flood; collapse; explosion; debris removal; demolition occasioned by enforcement of Laws and Regulations; water damage (other than that caused by flood); and such other perils or causes of loss as may be specifically required by the Supplementary Conditions. If insurance against mechanical breakdown, boiler explosion, and artificially generated electric current; earthquake; volcanic activity, and other earth movement; or flood, are not commercially available under builder's risk policies, by endorsement or otherwise, such insurance may be provided through other insurance policies acceptable to the City and the Contractor. iii. cover, as insured property, at least the following: (a) the Work and all materials, supplies, machinery, apparatus, equipment, fixtures, and other property of a similar nature that are to be incorporated into or used in the preparation, fabrication, construction, erection, or completion of the Work, including City - furnished or assigned property; (b) spare parts inventory required within the scope of the Contract; and (c) temporary works which are not intended to form part of the permanent constructed Work but which are intended to provide working access to the site, or to the Work under construction, or which are intended to provide temporary support for the Work under construction, including scaffolding, form work, fences, shoring, falsework, and temporary structures. iv. cover expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects). V. extend to cover damage or loss to insured property while in temporary storage at the site or in a storage location outside the site (but not including property stored at the premises of a manufacturer or Supplier). vi. extend to cover damage or loss to insured property while in transit. vii. allow for partial occupation or use of the Work by the City, such that those portions of the Work that are not yet occupied or used by the City shall remain covered by the builder's risk insurance. viii. allow for the waiver of the insurer's subrogation rights, as set forth below. ix. provide primary coverage for all losses and damages caused by the perils or causes of loss covered. X. not include a co-insurance clause. A. include an exception for ensuing losses from physical damage or loss with respect to any defective workmanship, design, or materials exclusions. xii. include performance/hot testing and start-up. xiii. be maintained in effect, subject to the provisions herein regarding Substantial Completion and partial occupancy or use of the Work by the City, until the Work is complete. b. Notice of Cancellation or Change: All the policies of insurance (and the certificates or other evidence thereof) required to be purchased and maintained in accordance with this Paragraph 5.3.5 will contain a provision or endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until at least ten (10) days prior written notice has been given to the purchasing policyholder. Within three (3) days of receipt of any such written notice, the purchasing policyholder shall provide a copy of the notice to each other insured. N r V L c 0 U L a� EM L 0 0 E L M 3 Q Page 39 of 103 Packet Pg. 42 4.1.a c. Deductibles: The purchaser of any required builder's risk or property insurance shall pay for costs not covered because of the application of a policy deductible. d. Partial Occupancy or Use by the City: If the City will occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work as provided in Paragraph 12.4 and 12.5, then the City (directly, if it is the purchaser of the builder's risk policy, or through the Contractor) will provide notice of such occupancy or use to the builder's risk insurer. The builder's risk insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy; rather, those portions of the Work that are occupied or used by the City may come off the builder's risk policy, while those portions of the Work not yet occupied or used by the City shall remain covered by the builder's risk insurance. e. Additional Insurance: If the Contractor elects to obtain other special insurance to be included in or supplement the builder's risk or property insurance policies provided under this Paragraph 5.3.5, it may do so at the Contractor's expense. Insurance of Other Property: If the express insurance provisions of the Contract do not require or address the insurance of a property item or interest, such as tools, construction equipment, or other personal property owned by the Contractor, a Subcontractor, or an employee of the Contractor or a Subcontractor, then the entity or individual owning such property item will be responsible for deciding whether to insure it, and if so in what amount. The Contractor certifies that it is aware of the provisions of Title 51 of the Revised Code of Washington which requires every employer to be insured against liability of Workers' Compensation, or to undertake self-insurance in accordance with the provisions of that Title. The Contractor shall comply with the provisions of Title 51 of the Revised Code of Washington before commencing the performance of any Work. The Contractor shall provide the Contract Administrator with evidence of Workers' Compensation Insurance (or evidence of qualified self-insurance) before any Work is commenced. In case of breach of any provision of this section, the City may, at its option and with no obligation to do so, provide and maintain at the expense of the Contractor, such types of insurance in the name of the Contractor, and with such insurers, as the City may deem proper, and may deduct the cost of providing and maintaining such insurance from any sums which may be found or become due to the Contractor under this Contract or may demand the Contractor to promptly reimburse the City for such cost. 5.4 Contractor Pollution Liability 5.4.1 If a Job Order requires Contractor Pollution Liability, the successful Contractor(s) will be required to provide Contractor Pollution Liability with minimum limits of liability of not less than One Million Dollars ($1,000,000) per claim or occurrence and Two Million Dollars ($2,000,000) aggregate per policy period of one (1) year. N r V L 0 U L a� L 0 0 L 3 Q Page 40 of 103 Packet Pg. 43 4.1.a If the Contractor Pollution Liability coverage is written on a claims -made form: a. The retroactive date must be shown and must be before the date of the Contract or the start of Work; b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Work; c. If coverage is canceled or non -renewed and not replaced with another claims - made policy form with a retroactive date prior to the Contract Date the Contractor must purchase an extended period coverage for a minimum of five (5) years after the completion of the Work; d. A copy of the claims reporting requirements must be submitted to the City for review. 5.5 Waiver of Rights 5.5.1 All policies purchased in accordance with Paragraph 5.3.5, expressly including the builder's risk policy, shall contain provisions to the effect that in the event of payment of any loss or damage the insurers will have no rights of recovery against any insureds thereunder, or against the Engineer or its consultants, or their officers, directors, members, partners, employees, agents, consultants, or subcontractors. The City and the Contractor waive all rights against each other and the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against the Engineer, its consultants, all Subcontractors, all individuals or entities identified in the Supplementary Conditions as insureds, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, under such policies for losses and damages so caused. None of the above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by the City or the Contractor as trustee or fiduciary, or otherwise payable under any policy so issued. 5.5.2 The City waives all rights against the Contractor, Subcontractors, and the Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, for: a. loss due to business interruption, loss of use, or other consequential loss extending beyond direct physical loss or damage to the City's property or the Work caused by, arising out of, or resulting from fire or other perils whether or not insured by the City; and b. loss or damage to the completed Project or part thereof caused by, arising out of, or resulting from fire or other insured peril or cause of loss covered by any property insurance maintained on the completed Project or part thereof by the City during partial occupancy or use, after Substantial Completion, or after final payment. Page 41 of 103 Packet Pg. 44 4.1.a c. Any insurance policy maintained by the City covering any loss, damage or consequential loss referred to in Paragraph 5.5.2(b) shall contain provisions to the effect that in the event of payment of any such loss, damage, or consequential loss, the insurers will have no rights of recovery against the Contractor, Subcontractors, or the Engineer, or the officers, directors, members, partners, employees, agents, consultants, or subcontractors of each and any of them. 5.5.3 The Contractor shall be responsible for assuring that the agreement under which a Subcontractor performs a portion of the Work contains provisions whereby the Subcontractor waives all rights against the City, the Contractor, all individuals or entities identified in the Supplementary Conditions as insureds, the Engineer and its consultants, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils or causes of loss covered by builder's risk insurance and any other property insurance applicable to the Work. 5.6 Receipt and Application of Property Insurance Proceeds 5.6.1 Any insured loss under the builder's risk and other policies of insurance required by Paragraph 5.3.5 will be adjusted and settled with the named insured that purchased the policy. Such named insured shall act as fiduciary for the other insureds and give notice to such other insureds that adjustment and settlement of a claim is in progress. Any other insured may state its position regarding a claim for insured loss in writing within fifteen (15) days after notice of such claim. 5.6.2 Proceeds for such insured losses may be made payable by the insurer either jointly to multiple insureds, or to the named insured that purchased the policy in its own right and as fiduciary for other insureds, subject to the requirements of any applicable mortgage clause. A named insured receiving insurance proceeds under the builder's risk and other policies of insurance required by Paragraph 5.3.5 shall distribute such proceeds in accordance with such agreement as the parties in interest may reach, or as otherwise required under the dispute resolution provisions of this Contract or applicable Laws and Regulations. 5.6.3 If no other special agreement is reached, the damaged Work shall be repaired or replaced, the money so received applied on account thereof, and the Work and the cost thereof covered by Supplemental Job Order, if needed. END ARTICLE 5 Page 42 of 103 Packet Pg. 45 4.1.a ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES 6.1 Examination of the Site of Work and Detailed Scope of Work By submitting a Job Order Proposal for a Job Order, the Contractor represents that it has carefully examined and investigated the site(s) of the Work, including material site(s), and the Detailed Scope of Work. The submission of its Job Order Proposal shall be conclusive evidence that the Contractor represents and acknowledges that it has made such examinations and investigations and is satisfied as to the conditions to be encountered in the performance of the Work, including the character, quantity, quality, and Detailed Scope of the Work, safety precautions to be undertaken, the quantities and qualities of materials to be supplied, and equipment and labor to be used, the requirements of the Detailed Scope of Work and how all such requirements correlate to the conditions at the site(s) of the Work. The Contractor shall determine from careful examination of the Detailed Scope of Work and the site of the Work, the methods, materials, labor, and equipment required to perform the Work in full, and the Contractor shall reflect the same in its Proposal. 6.2 Error, Inconsistency, Omission or Variance in the Contract Documents The Contractor shall promptly report to the Project Manager and/or the Contract Administrator any error, inconsistency, omission, or variance from applicable laws, statutes, codes, ordinances, or regulations which it discovers in the Detailed Scope of Work. If the Contractor promptly reports such discovery prior to commencement of any portion of the Work affected by any such error, inconsistency, omission, or variance, the Contractor shall not be liable to the City for damage resulting from such error, inconsistency, omission, or variance. If, however, the Contractor fails either to carefully study and compare the Detailed Scope of Work, or to promptly report the discovery of any error, inconsistency, omission, or variance known or believed by the Contractor to exist, the Contractor shall assume full responsibility therefore and shall bear all costs, liabilities and damages attributable to such error, inconsistency, omission, or variance. 6.3 Supervision 6.3.1 The Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Detailed Scope of Work. The Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of Work. The Contractor shall be responsible to see that the finished Work complies accurately with the Detailed Scope of Work. 6.3.2 The Contractor will provide a competent resident supervisor who understands the contract and the task being performed to continuously oversee the contract work. The supervisor will not be replaced without written notice to the Project Manager except under extraordinary circumstances. The supervisor will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the supervisor shall be as binding as if given to the Contractor. Page 43 of 103 Packet Pg. 46 4.1.a a. Any supervisor who repeatedly fails to follow the Project Manager's written or oral orders, directions, instructions, or determinations, or who has proven to be incompetent, careless, or negligent shall be subject to removal from the Work site. Upon the written request of the Project Manager or the Contract Administrator, the Contractor shall immediately remove such supervisor and name a replacement in writing. 6.3.3 The Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform the Work as required by the Detailed Scope of Work. The Contractor shall at all times maintain good discipline and order at the site. 6.3.4 Non-compliance with the Project Manager's request to remove and replace personnel at any level shall be grounds for terminating the Contract under the terms of Article 13. 6.3.5 The Contractor shall be fully responsible to the City for the acts or omissions of its employees, agents, Subcontractors, Sub -Subcontractors, suppliers, and their agents and employees, and all other persons who are to perform any of the Work. 6.3.6 The Contractor may not assign any portion of this Contract without the City's prior written consent. 6.4 Labor, Materials, and Equipment 6.4.1 The Contractor shall furnish all materials, equipment, labor, transportation, equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, and sanitary facilities and all other facilities and incidentals necessary for the execution, testing, initial operation and completion of the Work. 6.4.2 All materials and equipment shall be of good quality and new, except as otherwise provided in the Detailed Scope of Work. If required by the Project Manager, the Contractor shall furnish satisfactory evidence (including reports or required tests) as to the kind and quality of materials and equipment. 6.4.3 All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturer, fabricator, supplier or distributor, except as otherwise provided in the Contract Documents. 6.4.4 For equipment and materials that are permanently incorporated in the Work, the Contractor will provide to the Project Manager all Owners Manuals and Operating Instructions furnished by the equipment or material manufacturer. Page 44 of 103 Packet Pg. 47 4.1.a 6.5 Equivalent Materials and Equipment, "or Equal" 6.5.1 Whenever materials or equipment are specified or described in the Detailed Scope of Work, Drawings, Construction Task Catalog° or Specifications by using the name of a proprietary item or the name of a particular manufacturer, fabricator, supplier or distributor, the naming of the item is intended to establish the type, function, and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other manufacturers, fabricators, suppliers or distributors may be accepted by the Project Manager if sufficient information is submitted by the Contractor to allow the Project Manager to determine that the material or equipment proposed is equivalent to that named. The procedure for review by the Project Manager will be as set forth in Section 6.5.2 below as supplemented in the General Requirements. 6.5.2 Requests for review of substitute items of material and equipment will not be accepted by the Project Manager from anyone other than the Contractor. If the Contractor wishes to furnish or use a substitute item of material or equipment, the Contractor shall make written application to the Project Manager for acceptance thereof, certifying that the proposed substitute will perform adequately the functions called for by the general design, be similar and of equal substance to that specified, and be suited to the same use and capable of performing the same function as that specified. The application will state whether or not acceptance of the substitute for use in the Work will require a change in the Drawings or Specifications to adapt the design to the substitute and whether or not incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified shall be identified in the application and available maintenance, repair and replacement service will be indicated. The application will also contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs of redesign and claims of other contractors affected by the resulting change, all of which shall be considered by the Project Manager in evaluating the proposed substitute. The Project Manager may require the Contractor to furnish at the Contractor's expense additional data about the proposed substitute. The Project Manager will be the sole judge of acceptability, and no substitute will be ordered or installed without the Project Manager's prior written acceptance. The City may require the Contractor to furnish at the Contractor's expense a special performance guarantee or other surety with respect to any substitute. 6.6 Disposal of Demolished Materials 6.6.1 Waste material is defined as all material from demolition or other source that is unsuitable to, or in excess of, the needs of the Work or material that is designated for removal and disposal off of City property. All waste materials shall become the property of the Contractor. Materials containing substances classified as hazardous, potentially hazardous, infectious, toxic, or dangerous under applicable Local, State and/or Federal regulations shall be handled and disposed of as directed by applicable regulations, the Detailed Scope of Work and/or the Contract Documents. Page 45 of 103 Packet Pg. 48 4.1.a Proof of proper disposal of substances classified as hazardous, potentially hazardous, infectious, toxic, or dangerous is required by the City. 6.6.2 The Contractor is solely responsible for the lawful managing and disposal of waste material and shall indemnify, defend and hold the City harmless from all liability, damages, claims, lawsuits, penalties and expenses, whether direct, indirect or consequential including but not limited to attorney's and consultant's fees and other expenses of litigation or arbitration arising from or in any way connected with, the demolition, removal or disposal of materials, except as specified for hazardous materials. 6.6.3 The value of waste materials, if any, shall be reflected in the total Job Order price 6.6.4 During the course of the Work, if the Contractor encounters site materials that it believes may be hazardous, potentially hazardous, infectious, toxic, or dangerous, the Contractor will immediately notify the Project Manager and the Contract Administrator. 6.6.5 The City will retain title to all hazardous waste presently on -site encountered during demolition and removal. This does not include hazardous materials generated by the Contractor, such as used motor oils, lubricants, cleaners, etc. The Contractor shall dispose of such hazardous waste according to the Detailed Scope of Work and the Contract Documents, following local, State, and Federal regulations. The City of Edmonds will be shown as the hazardous waste generator and will sign all hazardous waste shipment manifests for non -contractor generated hazardous wastes. Nothing contained within these Contract Documents shall be construed or interpreted as requiring the Contractor to assume the status of the City or generator of hazardous waste substances for non -contractor generated hazardous wastes. 6.6.6 The Contractor shall follow all Environmental Protection Agency (EPA) and all other regulations regarding reporting the disposal of all materials. 6.7 Subcontractors and Sub -Subcontractors 6.7.1 Mandatory Criteria: As required by RCW 39.06.020 and 39.04.350(1), all subcontractors must satisfy all of the following criteria: • At the time of bid submittal, have a certificate of registration in compliance with Chapter 18.27 RCW; • Have a current state unified business identifier number; • If applicable, have Industrial Insurance coverage for the bidder's employees working in Washington as required in Title 51 RCW; an Employment Security Department number as required in Title 50 RCW; and a state excise tax registration number as required in Title 82 RCW; and • Not be disqualified from bidding on any public works contract under RCW 39.06.010 or 39.12.065(3). Page 46 of 103 Packet Pg. 49 4.1.a • If bidding on a public works project subject to the apprenticeship utilization requirements in RCW 39.04.320, not have been found out of compliance by the Washington State Apprenticeship and Training Council for working apprentices out of ratio, without appropriate supervision, or outside their approved work processes as outlined in their standards of apprenticeship under Chapter 49.04 RCW for the one-year period immediately preceding the date of the bid solicitation; and 6.7.2 The Contractor shall not employ any Subcontractor or other person or organization (including those who are to furnish the principal items of materials or equipment), whether initially or as a substitute, against whom the Project Manager may have reasonable objection. Acceptance of any Subcontractor, other person or organization by the City or the Project Manager shall not constitute a waiver of any right of the City to reject defective Work. If the City after due investigation has reasonable objection to any Subcontractor other person or organization proposed by the Contractor after the issuance of the Job Order, the Contractor shall submit an acceptable substitute. The Contractor shall not be required to employ any Subcontractor, other person or organization against whom the Contractor has reasonable objection. 6.7.3 The Contractor shall be fully responsible for all acts and omissions of its Subcontractors and of persons and organizations directly or indirectly employed by them and of persons and organizations for whose acts any of them may be liable to the same extent that the Contractor is responsible for the acts and omissions of persons directly employed by the Contractor. Nothing in the Contract Documents shall create any contractual relationship between the City or any contractor or other person or organization having a direct contract with the Contractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any contractor or other person or organization, except as may otherwise be required by law. The City may furnish to any Subcontractor or other person or organization, to the extent practicable, evidence of amounts paid to the Contractor on account of specific Work done. 6.7.4 All Work performed for the Contractor by a Subcontractor will be pursuant to an appropriate agreement between the Contractor and the Subcontractor which specifically binds the Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of the City. The City reserves the right to obtain copies of any Subcontractor and supplier agreements at any tier from the Contractor. 6.7.5 The Contractor will pay Subcontractors, in accordance with its contractual obligations to such parties, all the amounts the Contractor has received from the City on account of their work. The Contractor will impose similar requirements on Subcontractors to pay those parties with whom they have contracted. 6.8 Patent Fees and Royalties 6.8.1 The Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any N r U L c 0 U a� 0 0 3 Q Page 47 of 103 Packet Pg. 50 4.1.a invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Detailed Scope of Work for use in the performance of the Work and if to the actual knowledge of the City its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by the City in the Job Order. The Contractor shall indemnify and hold harmless the City and anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses (including attorneys' fees) arising out of any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Detailed Scope of Work, and shall defend all such claims in connection with any alleged infringement of such rights. 6.9 Laws and Regulations 6.9.1 The Contractor shall give all notices and comply with all laws, ordinances, rules, and regulations applicable to the Work. If the Contractor observes that the Specifications or Drawings are at variance therewith, the Contractor shall give the Project Manager prompt written notice thereof, and any necessary changes shall be adjusted by an appropriate modification. If the Contractor performs any Work knowing or having reason to know that it is contrary to such laws, ordinances, rules and regulations, and without such notice to the Project Manager, the Contractor shall bear all costs arising therefrom; however, it shall not be the Contractor's primary responsibility to make certain that the Detailed Scope of Work, Specifications and Drawings are in accordance with such laws, ordinances, rules and regulations. 6.10 Taxes 6.10.1 The Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the law of the State of Washington. All taxes are considered to be included in the Adjustment Factors. 6.11 Use of Premises 6.11.1 The Contractor shall confine equipment, the storage of materials and equipment and the operations of workmen to areas permitted by the City, and shall not unreasonably encumber the premises with equipment or other materials. 6.11.2 During the progress of the Work, the Contractor shall keep the premises free from accumulations of waste materials, rubbish, and other debris resulting from the Work. At the completion of the Work, the Contractor will remove all waste materials, rubbish, and debris from and about the premises as well as all tools, appliances, equipment and machinery, and surplus materials. The Contractor will leave the site clean and ready for occupancy by the City and restore to original condition any portions of the site not designated for alteration by the Detailed Scope of Work. Page 48 of 103 Packet Pg. 51 4.1.a 6.11.3 The Contractor will not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor will the Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.12 Record Documents 6.12.1 The Contractor shall keep one (1) record copy of all Specifications, Drawings, Addenda, modifications, Shop Drawings and samples at the site, in good order and annotated to show all changes made during the construction process. These will be available to the Project Manager and the Contract Administrator for examination and shall be delivered to the Project Manager for the City upon completion of the Work before final payment is made. 6.13 Safety and Protection 6.13.1 The Contractor will be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The Contractor shall take all necessary precautions for the safety of, and provide the necessary protection to prevent damage, injury or loss to: a. All employees on the Work and other persons who may be affected thereby; b. All the Work and all materials or equipment to be incorporated therein, whether in storage on or off the site; and c. Other property at the site or adjacent thereto, including vegetation, walks, pavements, roadways, structures, and utilities not designated for removal, relocation or replacement in the course of construction. It will be the Contractor's responsibility to protect the Work and repair any damages to the Work until after Final Acceptance, as defined in Article 12, has been achieved. 6.13.2 The Contractor will comply with all applicable laws, ordinances, rules, regulations, and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and will erect and maintain all necessary safeguards for such safety and protection. The Contractor will notify owners of adjacent property and utilities when prosecution of the Work may affect them. All damage, injury or loss to any property caused, directly or indirectly, in whole or in part, by the Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by the Contractor (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of the City or the Project Manager or anyone employed by either of them or anyone for whose acts either of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of the Contractor). The Contractor's duties and responsibilities for the safety and protection of the Work will continue until such time as all the Work is completed and the Project Manager has issued a notice to the Contractor in accordance with these General Conditions that the Work is acceptable. Page 49 of 103 Packet Pg. 52 4.1.a 6.13.3 The Contractor shall designate a responsible member of its organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's supervisor unless otherwise designated in writing by the Contractor to the City. 6.14 Emergencies 6.14.1 In emergencies affecting the safety or protection of persons, Work or property at the site or adjacent thereto, the Contractor, without special instruction or authorization from the Project Manager, is obligated to act to prevent threatened damage, injury or loss. The Contractor will give the Project Manager and the Contract Administrator prompt written notice of any significant changes in the Work or deviations from the Detailed Scope of Work caused thereby. 6.15 Shop Drawings and Samples 6.15.1 After checking and verifying all field measurements, the Contractor will submit Shop Drawings to the Project Manager for review and approval, as specified in the Job Order. The data shown on the Shop Drawings will be complete with respect to dimensions, design criteria, materials of construction and like information to enable the Project Manager to review the information as required. 6.15.2 The Contractor will promptly submit to the Project Manager for review and approval all samples required by the Job Order. All samples will have been checked by and stamped with the approval of the Contractor, identified clearly as to material, manufacturer, any pertinent catalog numbers, and the use for which intended. 6.15.3 At the time of sample and drawings submissions, any identified deviations from the Detailed Scope of Work will be called, in writing, to the Project Manager's attention. 6.15.4 The Project Manager will review Shop Drawings and samples within fifteen (15) days, but the Project Manager's review and approval shall be only for conformance with the design concept of the Project and for compliance with the information given in the Detailed Scope of Work and will not extend to means, methods, sequences, techniques, or procedures of construction or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. The Contractor will make any corrections required by the Project Manager and return the required number of corrected copies of Shop Drawings and resubmit new samples for review and approval. The Contractor will direct specific attention in writing to revisions other than the corrections called for by the Project Manager on previous submittals. The Contractor's stamp of approval on any Shop Drawing or sample shall constitute a representation to the City and the Project Manager that the Contractor has either determined and Page 50 of 103 Packet Pg. 53 4.1.a verified all quantities, dimensions, field construction criteria, materials, catalog numbers, and similar data or assumes full responsibility for doing so, and that the Contractor has reviewed or coordinated each Shop Drawing or sample with the requirements of the Detailed Scope of Work and the Contract Documents. 6.15.5 Where a Shop Drawing or sample is required by the Job Order, no related Work shall be commenced until the submittal has been reviewed and approved by the Project Manager. 6.16 Continuing the Work 6.16.1 The Contractor shall carry on the Work and maintain the progress schedule during all disputes or disagreements with the City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as the Contractor and the City may otherwise agree in writing. 6.17 Warranties 6.17.1 All Work will be of good quality, free from fault or defect, and in strict accordance with the requirements of the Detailed Scope of Work. Any Work not conforming to the foregoing warranty, including unapproved or unauthorized substitutions, shall be considered defective. 6.17.2 All Subcontractors', Sub -Subcontractors', manufacturers', and Suppliers' warranties and guarantees, expressed or implied, respecting any part of the Work and all materials used therein shall be obtained and enforced by the Contractor for the benefit of the City without the necessity of separate transfer or assignment thereof. When directed by the Project Manager or required by the Contract Documents, the Contractor shall require that Subcontractors, Sub -Subcontractors, manufacturers, and Suppliers execute separate warranties and guarantees in writing directly to the City. Warranty provisions which purport to limit or alter the City's rights under the Contract Documents are null and void. 6.17.3 The Contractor warrants that title to all Work, materials, and equipment covered by a request for a progress payment or final payment will pass to the City either by incorporation in the Work or upon the receipt of payment by the Contractor, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances. The Contractor further warrants that no Work, materials, or equipment covered by a request for a progress payment or final payment will have been acquired by the Contractor, or by any other person performing Work at the project site or furnishing materials and equipment for the project, which Work, materials, or equipment are subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller of the same or is otherwise imposed by the Contractor or other person. Page 51 of 103 Packet Pg. 54 4.1.a 6.18 Not Used 6.19 Progress Schedule 6.19.1 Within ten (10) days after the effective date of the Notice to Proceed and prior to start of Work unless otherwise specified in the Job Order, the Contractor will prepare and submit a Progress Schedule in a form satisfactory to the Project Manager. Failure to submit a proposed Progress Schedule within the allowed time will not constitute grounds for an extension of the Job Order Completion Time. 6.19.2 The Progress Schedule will consist of a network analysis of the Critical Path Method (CPM) in arrow diagram form showing an activity description, cost, and calendar day duration for all significant design, manufacturing, construction, and installation activities. An activity list will be included with each copy of the Progress Schedule. 6.19.3 Within thirty (30) calendar days after receipt, the City will review, add comments, and return three (3) copies of the Progress Schedule to the Contractor. Review by the City of the proposed Progress Schedule does not constitute an approval of the Contractor's construction means, methods, sequences, or schedule. 6.19.4 The Progress Schedule shall outline the proposed operations, the interrelations of the various operations, and the order of performance in sufficient detail that progress of the Work can be evaluated accurately at any time during the performance of the Work. If abbreviations are used in the make-up of the Progress Schedule, a legend is to be provided to define all abbreviations. 6.19.5 If milestone completions are required by the Job Order, then those milestones are to be clearly defined on the Progress Schedule. 6.19.6 Should it become evident that the Contractor may fail to meet the scheduled dates as shown, the Project Manager may require the Contractor to submit a recovery schedule demonstrating its proposed plan to make up lag in scheduled progress and to ensure completion of the Work within the Job Order Completion Time. The Contractor, upon request, will be required at the Contractor's own expense to submit a revised Progress Schedule and to increase the Contractor's work force and working hours (second and third shifts) as required to bring the actual completion dates of the activities into conformance with the Progress Schedule. Further, the Contractor will submit a revised Progress Schedule at no cost to the City when, in the opinion of the Project Manager, the Contractor's sequence of Work varies significantly from that shown on the Progress Schedule. The City reserves the right to withhold progress payments until such time as an approved modified Progress Schedule in a form satisfactory to the Project Manager has been provided by the Contractor. Page 52 of 103 Packet Pg. 55 4.1.a 6.19.7 Failure of the Contractor to substantially comply with the requirements of this section may be considered grounds for a determination by the City that the Contractor is failing to prosecute the Work with such diligence as will ensure its completion within the time specified, and to take whatever action the City deems necessary and appropriate under the terms of the Contract Documents. 6.20 On -Site Documents 6.20.1 The Contractor is to maintain at the Project site, in good order for ready reference by the Project Manager, one (1) complete record copy of the Detailed Scope of Work, including changes in the Work, Field Orders, and all working drawings, Progress Schedule, and other approved submittals. 6.20.2 The Job Order record drawings are to be marked to truly record all changes made during construction, i.e., the "as -built" conditions. The Project's record drawings are to be updated on a weekly basis and before elements of the Work are covered or hidden from view. After the completion of the Work or portions of the Work and before requesting final inspection, the record copy of the Drawings will be given to the Project Manager. 6.21 Working Drawings, Product Data, Samples, and Other Submittals 6.21.1 The Contractor will review and submit all working drawings, product data, samples and other items required to be submitted to the City accompanied by a "shop drawing multi -transmittal" form. Such submittals will be given to the City in a complete and final form at least thirty (30) days prior to any Contractor need for review response or such other longer time that may be needed to allow time for detailed review by the City or others. The Contractor should allow sufficient time for the possibility of rejection of the submittal, needed revisions, and resubmittal review time. 6.21.2 By submitting working drawings, product data, and samples, the Contractor represents that it has determined and verified all materials, field measurements, and related field construction criteria are in accordance with the Detailed Scope of Work, and that the Contractor has checked and coordinated the information contained within the submittal with the requirements of the Detailed Scope of Work. The costs incurred by the City to review resubmitted working drawings, product data, and samples may be offset from any monies due the Contractor when the Contractor has failed to comply with this Subsection. 6.21.3 Review and approval by the City of the Contractor's working drawings, product data, or samples does not relieve the Contractor of responsibility for the accuracy of dimensions and details. Likewise, any review and comments do not relieve the contractor from complying with every requirement of the Job Order drawings and specifications unless the Contractor has called written attention to any deviations contained in the submittal and these deviations have been reviewed and accepted. By omission of any feature, capability, or part of any item submitted, the Page 53 of 103 Packet Pg. 56 4.1.a Contractor implies that these missing features, capabilities, or parts will be furnished exactly as required by the Job Order documents. Review and approval shall not constitute acceptance by the City of the correctness or adequacy of such submittals, nor shall it constitute a representation or warranty by the City that the drawings will satisfy the requirements of the Job Order. The review of a specific item shall not indicate approval of an assembly in which the item functions. The City's review or approval of a submittal shall not relieve the Contractor from responsibility for errors or omissions in the submittals. 6.21.4 Any Work delayed by reason of a properly rejected submittal is deemed to be entirely the Contractor's risk and will not be the basis for a claim by the Contractor for additional compensation or an extension of Job Order Completion Time. Drawings marked "subject to change" or the like will not be reviewed. The City is not required to review submittals that depend for their review on other submittals not yet submitted. 6.21.5 When resubmitting a submittal, the Contractor is to direct specific attention, in writing or on the resubmittal itself, to all revisions it has made. 6.21.6 No portion of the Work requiring submittal of a working drawing, product data, or sample is to be commenced until the submittal has been approved by the City as provided in these General Conditions. All portions of the Work involving submittals shall be performed in accordance with the approved submittals. 6.21.7 As -Built Drawings: If the Contractor is provided, or prepares, drawings as part of the Detailed Scope of Work, then as the Detailed Scope of Work progresses the Contractor shall keep a complete and accurate record of changes to, and deviations from, such drawings. The As -Built Drawings will be created in the same medium (paper, electronic) in which they were originally prepared. 6.22 Cutting, Fitting and Patching of Work 6.22.1 The Contractor will be responsible for all cutting, fitting, patching, or such other altering as may be required to complete the Work, or to make its several parts fit together properly. 6.22.2 The Contractor will not damage or endanger any portion of the Work, other work of the City, or that of any separate contractor(s) by cutting, fitting, patching or other altering of any work, or by excavation. The Contractor will not alter any of the work of the City or any separate contractor without written authorization from the City. 6.23 Inspection of the Work 6.23.1 The Project Manager or authorized representative shall have the right but not the obligation to inspect the Work, and to reject and refuse all labor and materials or methods of application, or any part thereof, which does not comply in kind, quality or material with the requirements of the Detailed Scope of Work. Any labor or material rejected, as not conforming to the Contract Documents shall be promptly removed. Labor and materials which do so conform will be furnished and Page 54 of 103 Packet Pg. 57 4.1.a delivered in place thereof; and if the Contractor refuses or neglects to remove such rejected material or to rebuild any such rejected Work, or otherwise correct the defects as the Project Manager directs, the City may obtain, use and employ materials, labor, tools, and implements to do the same and the expense thereof will be deducted from moneys which may otherwise be due or become due to the Contractor. 6.24 Uncovering of Work 6.24.1 If any portion of the Work should be covered prior to inspection called for by law or as required by the Contract Documents, the Contractor will, upon request of the Project Manager, uncover or remove the Work for inspection by the Project Manager or other governmental representatives, and replace the Work to the standard required by the Detailed Scope of Work, all at the Contractor's expense. 6.24.2 If any other portion of the Work has been covered or completed, the Contractor will, upon the request of the Project Manager, remove or uncover such Work for the Project Manager's observation. The Contractor will subsequently restore that portion of the Work to the standard required by the Detailed Scope of Work at no additional costs to the City. 6.25 Correction of Work 6.25.1 The Contractor will, at no additional expense to the City, promptly correct all Work which is defective or otherwise fails to conform to the requirements of the Detailed Scope of Work. Such Work is to be corrected even though it was previously inspected by the City, payment for it was included in a progress payment, whether or not it was completed, and whether or not it was observed before or after the date of Substantial Completion. 6.25.2 If, within one (1) year after Substantial Completion of the Work or within such longer period of time as may be prescribed by law or by the terms of any applicable additional warranty required by the Job Order, any of the Work is found to be defective or otherwise not in conformance with the Detailed Scope of Work, the Contractor will, at its cost, promptly correct such defective or non- conforming Work after receipt of written notice from the City. The obligation of this subsection shall survive termination of the Contract. 6.25.3 If the Contractor refuses or neglects to correct the defects as directed by the Project Manager, the City may obtain, use, and employ materials, labor, tools and implements to do the same and the expense thereof shall be deducted from moneys which may otherwise be due or become due to the Contractor or the City. If the Contractor fails to promptly correct defective or non -conforming Work, the City may correct it as provided in section 6.25, or may terminate this Contract. 6.25.4 Work corrected by the Contractor pursuant to section 6.25 will also be subject to the provisions of this section to the same extent as Work originally performed and for an additional one-year period commencing upon City acceptance of corrected work. Page 55 of 103 Packet Pg. 58 4.1.a 6.25.5 Nothing contained in this section is to be construed to establish a period of limitation with respect to any other obligation imposed on the Contractor by the Contract Documents or law, including the obligations imposed by section 6.17. The establishment of the time period of one year after the date of Final Completion or such longer period of time as may be prescribed by law or by the terms of any warranty required by the Job Order relates only to the specific obligation of the Contractor to correct defective or non -conforming Work, and bears no relationship to the time within which the Contractor's obligation to comply with the Job Order 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 obligations imposed on it by the Contract Documents or as otherwise may exist in law. 6.25.6 The City may, at its sole option, elect to retain defective or nonconforming Work In such case, the Contractor will reduce the Job Order Price in a reasonable amount to account for such defect or non-conformance. 6.26 Responsibility for Work 6.26.1 All Work performed under the Contract and all materials to be incorporated in the Work, whether in storage or on the Project site and whether under the care, custody and control of the Contractor, Subcontractor, or Sub -Subcontractor, shall be at the sole risk of loss and responsibility of the Contractor until Final Completion of the entire Project, except as may be limited by the Project Manager in writing for the period following Substantial Completion of the Work or designated portion thereof as provided in section 12.4. Damage from any cause to either permanent or temporary Work, utilities, materials, equipment, existing structures, the Project site, and other property owned by the City or others, shall be repaired by the Contractor to the satisfaction of the Project Manager at no additional cost to the City. At no time during the execution of this Contract shall the Contractor direct City staff or City agents to assist in the execution of the Work. 6.27 Hazardous Materials 6.27.1 The Contractor will comply with WAC 296-901 Global Harmonized System for Hazard Communication; and provide proper communications with personnel to prevent injury or illness. 6.27.2 The Contractor will take the following precautions to lessen the possibility of exposure to any hazardous material(s): • Notify all Subcontractors and/or suppliers of any Hazardous Materials that may be on site; • Label any Hazardous Materials brought on site as to contents, hazard warning, name and address of manufacturer; • Provide the following written information to the Project Manager prior to commencement of Work: 1. A list of Hazardous Materials to be used during the construction phase of the Page 56 of 103 Packet Pg. 59 4.1.a Work along with appropriate Material Safety Data Sheets. 2. A list of any Hazardous Materials that have been incorporated into the Project and will remain on site, along with the Material Safety Data Sheets. 6.27.3 The Contractor is not to cause or permit any Hazardous Material(s), as defined herein, to be brought upon, kept, or used in or about the job site except to the extent such Hazardous Materials are necessary for the prosecution of the Work or are required pursuant to the Contract Documents. Removal of such Hazardous Materials will be undertaken within twenty-four (24) hours following the City's demand for such removal. Removal will be undertaken by the Contractor at its sole cost and expense and will be performed in accordance with all applicable laws. Any damage to the Work, the job site or any adjacent property resulting from the improper use, or any discharge or release of Hazardous Materials, will be remedied by the Contractor at its sole cost and expense, and in compliance with all applicable laws. The Contractor will immediately notify the City of any release or discharge of any Hazardous Materials on the job site. The Contractor will be responsible for making any and all disclosures required under applicable "Community Right -to -Know" laws. The Contractor will not clean or service any tools, equipment, vehicles, materials, or other items in such a manner as to cause a violation of any laws or regulations relating to Hazardous Materials. All residue and waste materials resulting from any such cleaning or servicing will be collected and moved from the job site in accordance with all applicable laws and regulations. The Contractor will immediately notify the City of any citations, orders, or warnings issued to or received by the Contractor, or of which the Contractor otherwise becomes aware, which relate to any Hazardous Materials on the job site. Without limiting any other indemnification provisions pursuant to law or specified in this Contract, the Contractor will indemnify, defend at the Contractor's sole cost with legal counsel approved by the City and hold the City harmless from and against any and all such claims, demands, losses, damages, disbursements, liabilities, obligations, fines, penalties, costs, and expenses in removing or remediating the effect of any Hazardous Materials on, under, from or about the job site, arising out of or relating to, directly or indirectly, the Contractor's failure to comply with any of the requirements of Section 6.27. 6.28 Clean-up 6.28.1 At all times, and as may specifically be requested by the Project Manager, the Contractor will clean-up and remove all refuse resulting from the Work in order that the Project site remains free from an accumulation of construction debris. Upon failure to do so within twenty-four (24) hours after request by the Project Manager, such clean-up Work may be done by the City and the cost be charged to the Contractor and deducted from the Job Order Price. 6.28.2 Upon completion of the Work and before final inspection, the Contractor will clean the entire Work premises occupied or used in connection with the Work of all rubbish, surplus and discarded materials, false work, temporary structures, equipment, and debris. The entire Work premises shall be left in a clean, neat, and Page 57 of 103 Packet Pg. 60 4.1.a presentable condition. The Contractor will not remove warning, regulatory, or guide signs prior to Final Completion except as requested by the Project Manager. 6.29 Protection of Work During Suspension 6.29.1 In preparation for and during any suspension of Work as provided in section 13.1, the Contractor will take every precaution to prevent damage to, or deterioration of, the Work. Except as provided elsewhere in the Job Order, the Contractor will be responsible for all damage or deterioration to the Work during the period of suspension and shall, at its sole expense, correct or restore the Work to a condition acceptable to the Project Manager prior to resuming Work. A suspension of Work will not relieve the Contractor of any of its responsibilities under the Job Order. 6.30 Notice and Detailed Breakdown of Claim 6.30.1 Notice. If unforeseen conditions or changes in the Work arise for which the Contractor believes an equitable adjustment in time or money or any other adjustment in Job Order Completion Time or Job Order Price is or will be due, the Contractor will give the City immediate oral notice followed by written notice within seven (7) calendar days of such event. In all events, notice must be given and the Project Manager's direction received prior to performing the Work which the Contractor believes entitles it to such adjustments. Notice must identify in detail the basis for the claim. The date such written notice is received by the City shall define the start of time for any purpose regarding the claim. 6.30.2 Detailed Breakdown. Within thirty (30) calendar days of the City's receipt of the written notice above, the Contractor is to provide the City with a written breakdown of all of the elements and sub elements of the claim detailing the increase in the Job Order Completion Time and/or Job Order Price being sought. 6.30.3 If the Contractor fails to satisfy the requirements of this section, the Contractor will be deemed to have waived all rights to assert the claim against the City. 6.30.4 Unless otherwise directed by the City, the Contractor shall continue performance under this Contract while matters in dispute are being resolved. 6.30.5 For Federally Funded Job Orders, the requirements in this Section 6.30 are in addition to any claim requirements in the Federal Contract Clauses. 6.31 Prerequisite to Suit No legal action against the City may be filed on account of a claim or other liability arising out of or related to Work unless: a. The requirements of section 6.30 have been complied with; and b. The lawsuit is filed and served on the City within one hundred eighty (180) days of the date of Substantial Completion. The Contractor's failure to strictly comply with all requirements of this section shall be a complete bar to any claims, suits, or causes of action against the City. Page 58 of 103 Packet Pg. 61 4.1.a For Federally Funded Job Orders, the requirements in this Section 6.31 are in addition to any claim requirements in the Federal Contract Clauses. 6.32 Indemnification 6.32.1 The Contractor shall defend, indemnify and hold harmless the City and its agents from all liability, claims, damages, losses and expenses, whether direct, indirect or consequential (including, but not limited to, attorneys' and consultants' fees and other expenses of litigation or arbitration) arising out of the performance of the Work, which is caused, or alleged to be caused, in whole or in part, by any negligent act or omission of the Contractor (which for the purposes of this Article 6.32 shall include the Contractor and all of its Subcontractors, Sub - Subcontractors, Suppliers, agents, any other person directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable); provided, however, that where such liability, claim, damage, loss or expense arises from the concurrent negligence of (1) the City or its agents, and (2) the Contractor, it is expressly agreed that the Contractor's obligations of indemnity under this section shall be effective only to the extent of the Contractor's negligence. Such obligations shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any person or entity described in this section. This section shall not be construed so as to require the Contractor to defend, indemnify, or hold harmless the City from such claims, damages, losses or expenses caused by or resulting from the sole negligence of the City or its agents. 6.32.2 In any and all claims against the City or its agents, the indemnification obligation of Article 6.32.1 above shall not be limited in any way to the extent of insurance coverage described in Articles 5.3 and 5.4 of the General Conditions, or by articles, which apply to insurance coverage, of the Supplementary Conditions, or by any limitation on the amount or type of damages, compensation benefits payable by or for the Contractor under applicable workers' compensation, benefit, or disability laws (including, but not limited to the Industrial Insurance laws, Title 51 of the Revised Code of Washington). The Contractor expressly waives any immunity the Contractor might have had under such laws with respect to the indemnities set forth in these General Conditions, and, by agreeing to enter this Contract, acknowledges that the foregoing waiver has been mutually negotiated by the parties. 6.32.3 For federally funded job orders, the following clause applies: No Federal Government Obligations to Third Parties (1) The City of Edmonds and the Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the Recipient, Contractor or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying Contract. Page 59 of 103 Packet Pg. 62 4.1.a (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by the FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. END ARTICLE 6 Page 60 of 103 Packet Pg. 63 4.1.a ARTICLE 7 ADDITIONAL WORK AND WORK BY OTHERS 7.1 Additional Work 7.1.1 The City may perform additional work related to the Project by itself or let other direct contracts which may contain General Conditions similar to these. The Contractor shall afford the other contractors who are parties to such direct contracts (or the City, if the City is performing the additional work with City employees) reasonable opportunity for the introduction and storage of materials and equipment and the execution of work, and shall properly connect and coordinate its Work with theirs. 7.1.2 If any part of the Contractor's Work depends for proper execution or results upon the work of any such other contractor or the City, the Contractor shall inspect and promptly report to the Project Manager in writing any patent or apparent defects or deficiencies in such other work that render it unsuitable for such proper execution and results. The Contractor's failure so to report will constitute an acceptance of the other work as fit and proper for integration with the Contractor's Work except for latent or non -apparent defects and deficiencies in the other work. 7.1.3 The Contractor will do all Work required to make its several parts come together properly and integrate with such other work. The Contractor will not endanger any work of others by otherwise altering their work and will only alter their work with written consent of the Project Manager and the others whose work will be affected 7.1.4 If the performance of additional work by other contractors or the City was not noted in the Detailed Scope of Work, written notice will be given to the Contractor prior to starting any such additional work. The City will coordinate and schedule any such additional Work not noted in the Detailed Scope of Work to avoid interference or conflict with ongoing or scheduled work by the Contractor. END ARTICLE 7 Page 61 of 103 Packet Pg. 64 4.1.a ARTICLE 8 CITY'S RESPONSIBILITIES 8.1 Authority of the Project Manager 8.1.1 A Project Manager's authority is specific to the Job Order to which he or she is assigned. 8.1.2 The Contract Administrator will exercise all authority of the Project Manager with respect to any and all Job Orders at any time. 8.1.3 The Contract Administrator will be the City's representative and shall administer all Contract Documents. With respect to a Job Order, Final Acceptance as provided for in Article 12 will be accomplished by the Project Manager. The Project Manager and the Contract Administrator have the authority to enforce all obligations imposed on the Contractor by the Contract Documents. 8.1.4 The Work will be performed in accordance with the Detailed Scope of Work and the Contract Documents. The Project Manager has the authority but not the obligation to reject Work that is defective or does not otherwise conform to the Detailed Scope of Work. 8.1.5 The Project Manager is not responsible for and will not have control or charge of the means, methods, techniques, sequences, or procedures of Work, or for safety precautions or programs incidental thereto, these being the sole responsibility of the Contractor. The Project Manager will not be responsible for or have any control or charge of the acts or omissions of the Contractor, Subcontractor, Sub - Subcontractor, Suppliers, or any of their agents or employees, or any other persons performing a portion of the Work. 8.1.6 The City will issue all communications to the Contractor through the Project Manager or the Contract Administrator, as determined. In case of termination of the employment of the Project Manager or the Contract Administrator, the City will appoint a replacement(s). 8.2 Administration of the Contract 8.2.1 Nothing in this Article or elsewhere in the Contract Documents shall be construed as requiring the Project Manager, the Contract Administrator, the Inspector, a consultant, or other representative of the City to direct or advise the Contractor as to the method or manner of performing the Work. No approval or advice given by the City as to the method or manner of performing the Work or procuring materials to be furnished will constitute a representation or warranty by the City that the result of such method or manner will conform to the Detailed Scope of Work or achieve the desired results. Such approval or advice will neither relieve the Contractor of any of its obligations under the Contract nor create any liability to the City on account of approval or advice. The Project Manager or the Inspectors may call to the attention of the Contractor defective Work or Work that does not conform otherwise to the Detailed Scope of Work. However, the failure of the Page 62 of 103 Packet Pg. 65 4.1.a Project Manager or the Inspectors to so inform the Contractor will not constitute approval or acceptance of such defective or non -conforming Work. 8.2.2 The presence of the Project Manager or the Inspector during the progress of any Work does not relieve the Contractor from responsibility for defects in the Work, nor does it bind the City in determining Final Completion of the Work. 8.2.3 Work done or material furnished which at any time is found not to conform to the requirements of the Contract Documents shall be at the Contractor's risk and expense and shall furnish no basis for an increase in the Contract Sum or Contract Time, even though the Project Manager or the Inspector fails to reject such Work or material. 8.3 City's Right to Carry Out Other Work The City reserves the right at all times to perform or cause to be performed other and additional work on or near the site of the Project. Should such other or additional work or City operations be either underway or subsequently undertaken at or near the Project, the the Contractor will coordinate its activities with those of all other work forces and conduct its activities to avoid or minimize any conflict between the operations of the Contractor and those persons performing the other or additional work or operations. 8.4 Officers and Employees of the City Have No Personal Liability Neither the elected officials, Project Manager, Contract Administrator, Inspector, nor any other officer, employee or agent of the City shall be personally liable to the Contractor for any of their acts or omissions arising out of the Project. 8.5 Gratuities The Contractor will not extend any loan, gratuity, or gift of money or services in any form whatsoever to any employee or officer of the City or City consultant, nor will the Contractor rent or purchase any equipment, materials, or services from any employee or officer of the City or any City consultant. 8.6 Service of Notices on the Contractor Any written notice required under the Contract Documents to be given to the Contractor may, at the option of the City, be served on the Contractor by personal service, electronic or facsimile transmission, mail, or private courier delivery to the last address provided in writing to the City Project Manager and the Contract Administrator. For the purpose of measuring time in determining the parties' rights and obligations with respect to notice given pursuant to the Job Order and Contract Documents (other than that given by personal service), notice is conclusively presumed to be received by the Contractor on the next business day following the City's electronic or facsimile transmittal placing the notice in the U.S. mail or delivering it to the private courier. END ARTICLE 8 Page 63 of 103 Packet Pg. 66 4.1.a ARTICLE 9 PROJECT MANAGER'S STATUS DURING WORK 9.1 City's Representative The Project Manager will be the City's representative for a Job Order. The Project Manager and the City's Contract Administrator will be identified to the Contractor prior to commencement of the Work. 9.2 Clarifications and Interpretations The Project Manager will issue with reasonable promptness such written clarifications or interpretations of the Detailed Scope of Work in the form of Drawings or otherwise as the Project Manager may determine necessary, which will be consistent with or reasonably inferable from the overall intent of the Detailed Scope of Work. If the Contractor believes that a written clarification or interpretation justifies an increase in the Job Order Price or Job Order Completion Time, the Contractor may make a claim as provided in Article 10. 9.3 Rejecting Defective Work The Project Manager will have authority to disapprove or reject Work which is defective, and will also have authority to require special inspection or testing of the Work, whether or not the Work is fabricated, installed or completed. 9.4 Not Used 9.5 Decisions on Disagreements 9.5.1 The Contract Administrator will be the initial interpreter of the Contract Documents while the Project Manager will be the initial interpreter of the requirements of the Job Order and judge of the acceptability of the Work. Additional disputes relating to the acceptability of the Work or the interpretation of the requirements of the Detailed Scope of Work or Contract Documents pertaining to the execution and progress of the Work shall be referred to the Contract Administrator in writing with a request for a formal decision in accordance with this section, which the Contract Administrator will render in writing within a reasonable time. Written notice of each such dispute shall be delivered by the claimant to the Contract Administrator within fifteen (15) calendar days of the occurrence after the event giving rise thereto, and written supporting data will be submitted to the Contract Administrator within forty-five (45) calendar days of such occurrence unless the Contract Administrator allows an additional period of time to ascertain more accurate data. 9.5.2 The rendering of a decision by the Contract Administrator pursuant to section 9.5.1 with respect to any such dispute (except any which have been waived by the making or acceptance of final payment as provided in section 12.8) will be a condition precedent to any exercise by the City or the Contractor of such rights or remedies as either may otherwise have under the Contract Documents or at law in respect of any such dispute. Page 64 of 103 Packet Pg. 67 4.1.a 9.6 Limitations on Project Manager's Responsibilities 9.6.1 Neither the Project Manager's authority to act under this Article 9 or elsewhere in the Contract Documents nor any decision made by the Project Manager in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of the Project Manager to the Contractor, any Subcontractor, any manufacturer, fabricator, supplier or distributor, or any of their agents or employees or any other person performing any of the Work. 9.6.2 Whenever in the Contract Documents the terms "as ordered", "as directed", "as required", "as allowed" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper" or "satisfactory" or adjectives of like effect or import are used, to describe a requirement, direction, review or judgment of the Project Manager as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate the Work for compliance with the Contract Documents unless there is a specific statement indicating otherwise. The use of any such term or adjective never indicates that the Project Manager shall have authority to supervise or direct performance of the Work or authority to undertake responsibility contrary to the provisions of Sections 9.8.2 or 9.8.3. 9.6.3 The Project Manager will not be responsible for the Contractor's means, methods, techniques, sequences or procedures of Work, or the safety precautions and programs incident thereto, and the Project Manager will not be responsible for the Contractor's failure to perform the Work in accordance with the Detailed Scope of Work. 9.6.4 The Project Manager will not be responsible for the acts or omissions of the Contractor or of any Subcontractor, or of the agents or employees of the Contractor or any Subcontractor, or of any other persons at the site or otherwise performing any of the Work. 9.7 Not Used 9.8 Requests for Instruction 9.8.1 Due to the highly variable nature of the materials and facilities encountered within the site, the Contractor will require instructions from the Project Manager as new areas are uncovered or exposed by the Work in progress. In the event that the Contractor requests such instructions in order to comply with the Contract requirements, the Project Manager will provide the instructions in writing, within forty- eight (48) hours. During the 48-hour period, no additional payments will be made to the Contractor for equipment, labor, or any other item related to the request for instructions. 9.8.2 In addition, the requirements of the Detailed Scope of Work may be supplemented and minor variations and deviations in the work may be authorized, in one or more of the following ways: Page 65 of 103 Packet Pg. 68 4.1.a a. The Project Manager may authorize minor variations in the work from the requirements of the Detailed Scope of Work which do not involve an adjustment in the Job Order Price or Job Order Completion Time and are consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order and will be binding on the City, and also on the Contractor who shall perform the Work involved promptly. If the Contractor believes that a Field Order justifies an increase in the Job Order Price or an extension of the Job Order Completion Time and the parties are unable to agree as to the amount or extent thereof, the Contractor may make a claim as provided in Article 10. b. The Project Manager's approval of a Shop Drawing or sample. c. The Project Manager's written interpretation or clarification. END ARTICLE 9 Page 66 of 103 Packet Pg. 69 4.1.a ARTICLE 10 CHANGES IN THE WORK 10.1 Changes to Contract Documents Non -Job Order Specific Contract Documents. Modification of the following Contract Documents after the effective date of the Contract requires a Contract amendment signed by an authorized representative of the Contractor and an authorized representative of the City: Contract, General Conditions, Supplementary Conditions, RFP and addenda thereto, Contractor's Proposal, and the Construction Task Catalog°. Job -Order Specific Contract Documents. Modification of the following Contract Documents and requirements after the effective date of the Contract are to be signed by the Contract Administrator and the Project Manager: all Job Orders and Job -Order specific documents, including but not limited to the Detailed Scope of Work, Job Order Completion Time, Request for Proposal, Price Proposal, Job Order Proposal, Notice to Proceed, submittals, record documents, and all required close- out documentation and warranties. Any modification that increases/decreases the Job Order Price must be signed by the Contract Administrator. 10.2 Change Order and Supplemental Job Order Changes to the Contract may be accomplished after execution of the Contract and without invalidating the Contract. The City, without invalidating the Job Order, may order changes in the Work by altering, adding to, or deducting from the Work, by issuing a Supplemental Job Order. All Supplemental Job Orders shall be developed and priced in accordance with the Procedures for Developing All Job Orders. Credits for Pre -priced and Non-Prepriced Tasks shall be calculated at the pre-set Unit Prices and multiplied by the appropriate Adjustment Factors. The result is that a credit for Tasks that have been deleted from the Detailed Scope of Work will be given at 100% of the value at which they were included in the original Job Order Price Proposal. All such Work shall be executed under the applicable conditions of the Contract Documents. The Project Manager may authorize minor changes in the Work that do not change the Job Order price, which are consistent with the overall intent of the Detailed Scope of Work. These may be accomplished by a Field Order and shall be binding on the City, and also on the Contractor who shall perform the change promptly. Additional Work performed without authorization of a Supplemental Job Order will not entitle the Contractor to an increase in the Job Order Price or an extension of the Job Order Completion Time. Page 67 of 103 Packet Pg. 70 4.1.a The Contractor may request a Supplemental Job Order to reflect modifications to the Work resulting from unforeseen site conditions. If the Project Manager determines that such unforeseen site conditions require a modification of the Work, the Project Manager will prepare a Supplemental Job Order for execution by the Contract Administrator incorporating such modifications as necessary to proceed with and complete the Work. The Contractor shall be responsible for reallocation of its work force when work cannot be continued in an area due to unforeseen conditions. In no event will the City reimburse the Contractor for charges caused by delays unless prior written authorization is provided by the City. 10.3 Job Order Price The Job Order Price constitutes the total compensation subject to authorized adjustments payable to the Contractor for performing the Detailed Scope of work. All duties, responsibilities and obligations assigned to or undertaken by the Contractor shall be at its expense without change in the Job Order Price. Contractor Mobilization consists of preconstruction expenses and costs of preparatory work and operations performed by the Contractor that are not defined as a part of a payment item and are considered to be part of the Job Order Price. 10.4 Job Order Completion Time Any extension of Job Order Completion Time must have the written approval of the City and must conform to the procedures set forth herein. In event of delay in completion of the Work caused by acts of God, or public enemy, or another contractor in the performance of a contract with the City, or caused by fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or weather, the sole and exclusive remedy of the Contractor will be an equitable extension of time allowed for completion. Reasonable Delays. The Contractor should anticipate that some reasonable delays, including those caused by normal weather patterns, may occur. The Contractor shall not be entitled to any compensation, damages, or extension of the Contract Time for such reasonable delays. Excusable Delays. The Job Order Completion Time may be extended without compensation by the City for a period equivalent to the time that the Contractor was delayed in the Work by one or more of the following causes, beyond the control of the City and the Contractor, occurring during the performance of the Work: a. Fire or other casualty for which the Contractor is not at fault or otherwise responsible; b. Strike, riot, war, or civil disorder; c. Suspension of Work due to unusual and severe weather; d. Suspension of Work due to other unsuitable conditions in accordance with Article 13. Page 68 of 103 Packet Pg. 71 4.1.a Unreasonable Delays. Extensions of Job Order Completion Time, if any, will be determined by the Project Manager. Time extensions will be allowed only to the extent that completion of the Work is unreasonably delayed through no fault of the Contractor, which must in all cases unless otherwise determined by the Project Manager be substantiated by impact to the critical path on the Progress Schedule. Any extension of the Job Order Completion Time by the City will be set forth in writing, which shall specify the calendar days by which the Contract Time is to be increased. No extension of time shall be allowed for any claimed delay which is caused by or results from concurrent delay or the fault, negligence, or collusion of the Contractor or its Subcontractors, suppliers, or any others, or any of their acts or failure to act or to timely perform the Work according to the Contract. Failure to make timely submittals to the City, procure materials or workmen, or perform the Work in accordance with the requirements of the Detailed Scope of Work, or to adequately plan for such functions will not be an adequate reason for an extension of the Job Order Completion Time. In no event shall the Contractor be entitled to loss or damage, including a change in Job Order Price for any delay in the Contractor's prosecution of the Work, even if such delay is caused by the City, except to the extent such acts or omissions of the City result in a delay to the Project's critical path, in which case the Contractor may receive an adjustment to the Job Order Price and/or an extension of the Job Order Completion Time. Any request for such cost shall be established and documented by the Contractor in detail to the satisfaction of the Project Manager. If the Contractor fails to fully comply with section 6.30, its claim for an extension of the Job Order Completion Time or adjustment to the Job Order Price on account of such claimed delay is waived. The Job Order Completion Time may only be changed by the City. Any request for an extension in the Job Order Completion Time shall be based on written notice delivered to the Project Manager and the Contract Administrator within fifteen (15) days of the occurrence of the event giving rise to the request. All requests for adjustment in the Job Order Completion Time shall be determined by the Contract Administrator if the Project Manager and the Contractor cannot otherwise agree. Any change in the Job Order Completion Time resulting from any such request shall be incorporated in a Field Order. The Job Order Completion Time will be extended in an amount equal to time lost due to delays beyond the control of the Contractor if a request is made therefore as provided in this Article 10. All time limits stated in the Job Orders and the Contract Documents are of the essence of the Contract. The provisions of this Article 10 shall not exclude recovery for damages including compensation for additional professional services for delay by either party. END ARTICLE 10 Page 69 of 103 Packet Pg. 72 4.1.a ARTICLE 11 WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 11.1 Warranty and Guarantee The Contractor warrants and guarantees to the City that all Work will be in accordance with the Detailed Scope of Work and will not be defective. Prompt notice of all defects shall be given to the Contractor. All defective Work, whether or not in place, may be rejected, corrected or accepted as provided in this Article 11. 11.2 Access to Work The Project Manager and the Project Manager's representatives, other representatives of the City, testing agencies and governmental agencies with jurisdictional interests will have access to the Work at reasonable times for their observation, inspection and testing. The Contractor shall provide proper and safe conditions for such access. 11.3 Tests and Inspections 11.3.1 The Contractor will give the Project Manager a minimum of seven (7) days' notice of readiness of the Work for all required inspections, tests or approvals. 11.3.2 If any law, ordinance, rule, regulation, code, or order of any public body having jurisdiction requires any Work or part thereof to specifically be inspected, tested or approved, the Contractor will assume full responsibility, pay all costs in connection, and furnish the Project Manager with the required certificates of inspection, testing or approval. The Contractor will also be responsible for and pay all costs in connection with any inspection or testing required in connection with the City's or the Project Manager's acceptance of a manufacturer, fabricator, supplier or distributor of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to the Contractor's purchase thereof for incorporation in the Work. The cost of all other inspections, tests and approvals required by the Contract Documents shall be paid by the City unless otherwise specified. 11.3.3 All inspections, tests or approvals other than those required by law, ordinance, rule, regulation, code or order of any public body having jurisdiction will be performed by organizations acceptable to the City and the Contractor or by the Project Manager if so specified. 11.3.4 If any Work that is to be inspected, tested or approved is covered without written concurrence of the Project Manager, it must, if requested by the Project Manager, be uncovered for observation. Such uncovering shall be at the Contractor's expense unless the Page 70 of 103 Packet Pg. 73 4.1.a Contractor has given the Project Manager timely notice of the Contractor's intention to cover such Work and the Project Manager has not acted with reasonable promptness in response to such notice. 11.3.5 Neither observations by the Project Manager nor inspections, tests or approvals by others will relieve the Contractor from its obligations to perform the Work in accordance with the Detailed Scope of Work. 11.4 City May Stop the Work If the Work is defective, or the Contractor fails to supply sufficient skilled workmen or suitable materials or equipment, the City may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the City to stop the Work will not give rise to any duty on the part of the City to exercise this right for the benefit of the Contractor or any other party. 11.5 Correction or Removal of Defective Work If required by the Project Manager, the Contractor shall promptly, without cost to the City and as specified by the Project Manager, either correct any defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by the Project Manager, remove it from the site and replace it with non -defective Work. 11.6 Acceptance of Defective Work If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. In such case, if acceptance occurs prior to the Project Manager's recommendation of final payment, a Supplemental Job Order shall be issued incorporating the necessary revisions in the Detailed Scope of Work, including appropriate reduction in the Price; or, if the acceptance occurs after such recommendation, an appropriate amount shall be paid by the Contractor to the City. 11.7 City May Correct Defective Work If the Contractor fails within a reasonable time after written notice of the Project Manager to proceed to correct and to correct defective Work or to remove and replace rejected Work as required by the Project Manager in accordance with section 11.5, or if the Contractor fails to perform the Work in accordance with the Contract Documents (including any requirements of the progress schedule), the City may, after seven (7) days' written notice to the Contractor, correct and remedy any such deficiency. In exercising its rights under this section the City shall proceed expeditiously. To the extent necessary to complete corrective and remedial action, the City may exclude the Contractor from all or part of the site, take possession of all or part of the Work, and suspend the Contractor's services related thereto, take possession of the Contractor's tools, appliances, equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere. The Page 71 of 103 Packet Pg. 74 4.1.a Contractor shall allow the City and the City's representatives, agents and employees such access to the site as may be necessary to enable the City to exercise its rights under this Section. All direct and indirect costs of the City in exercising such rights shall be charged against the Contractor in an amount verified by the Project Manager, and a Supplemental Job Order shall be issued incorporating the necessary revisions in the Detailed Scope of Work and a reduction in the Job Order Price. Such direct and indirect costs shall include, in particular but without limitation, compensation for additional professional services required and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or replacement of the Contractor's defective Work. The Contractor shall not be allowed an extension of the Job Order Completion Time because of any delay in performance of the Work attributable to the exercise by the City of the City's rights hereunder. END ARTICLE 11 Page 72 of 103 Packet Pg. 75 4.1.a ARTICLE 12 PAYMENTS TO CONTRACTOR AND COMPLETION 12.1 Application for Progress Payment Unless otherwise specified in the General Requirements, the Contractor will submit Applications for Payment & Invoices to the Contract Administrator for review and approval following completion of each Job Order. Under no circumstances will the City pay Job Order Invoices more often than once a month. The Payment Application shall be accompanied by such supporting documentation as is required by the Contract Documents and also as the Contract Administrator reasonably requires. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the site or at another location agreed to in writing, the Invoice shall also be accompanied by such data, satisfactory to the City, as will establish the City's title to the material and equipment and protect the City's interest therein, including applicable insurance. 12.2 Contractor's Warranty of Title The Contractor warrants and guarantees that title to all Work, materials and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to the City at the time of payment free and clear of all liens, claims, security interests and encumbrances (hereafter in these General Conditions referred to as "Liens"). 12.3 Review of Applications for Progress Payment 12.3.1 The Contractor Administrator and the Project Manager will, within ten (10) days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Invoice for payment, or return the Invoice to the Contractor indicating in writing reasons for refusing to recommend payment. In the latter case, the Contractor may make the necessary corrections and resubmit the Application. Within thirty (30) days of receipt of a correct Invoice and with the Contract Administrator's and the Project Manager's recommendations, pay the Contractor the invoiced amount. 12.3.2 Not Used 12.3.3 Not Used 12.3.4 The Project Manager may refuse to recommend the whole or any part of any payment if, in his/her opinion, it would be incorrect to make such representations to the City. He/she may also refuse to recommend any such payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment previously recommended to such extent as may be necessary in the Project Manager's opinion to protect the City from loss because: a. the Work is defective, or completed Work has been damaged requiring correction or replacement; b. written claims have been made against the City or Liens have been filed in connection with the Work; Page 73 of 103 Packet Pg. 76 4.1.a c. the Job Order Price has been reduced because of Supplemental Job Order(s); d. The City has been required to correct defective Work or complete the Work in accordance with section 11.7; e. of the Contractor's unsatisfactory prosecution of the Work in accordance with the Detailed Scope of Work; f. the Contractor's failure to make payment to a Subcontractor, or for labor, materials or equipment; or g. of quantity adjustment or correction. 12.4 Substantial Completion 12.4.1 When the Contractor considers the entire Work ready for its intended use, the Contractor will certify in writing to the Project Manager that the entire Work is substantially complete and request that the Project Manager issue a Certificate of Substantial Completion. Within a reasonable time thereafter, the Contractor and the Project Manager will make an inspection of the Work to determine the status of completion. If the Project Manager does not consider the Work substantially complete, the Project Manager will notify the Contractor in writing giving his/her reasons. If the Project Manager considers the Work substantially complete, the Project Manager will prepare a Certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative "punch list" of items to be completed or corrected before final payment. A copy of the Certificate of Substantial Completion shall be forwarded to the Contract Administrator. 12.4.2 The City has the right to exclude the Contractor from the Work after the date of Substantial Completion, but will allow the Contractor reasonable access to complete or correct items on the punch list. 12.5 Partial Utilization Use by the City of completed portions of the Work may be accomplished prior to Substantial Completion of all the Work subject to the following: a. The City at any time may request in writing to the Contractor to permit the City to use any part of the Work which is believed to be substantially complete and can be used without significant interference with the other parts of the Work. If the Contractor agrees, the Contractor will certify to the City and the Project Manager that said part of the Work is substantially complete and request the Project Manager to issue a Certificate of Substantial Completion for that part of the Work. Within a reasonable time the City, Contractor and Project Manager will make an inspection of that part of the Work to determine its status of completion. If the Project Manager does not consider that part of the Work to be substantially complete, the Project Manager will notify the Contractor in writing giving his/her reasons. If the Project Manager considers that part of the Work to be substantially complete, the Project Manager will execute and deliver to the Contractor a certificate to that effect, fixing the date of Substantial Completion as to that part of the Work, attaching a tentative list (punch list) of items to be completed or corrected before final payment. The City will have the right to exclude the Contractor from any part of the Work which the Project Manager has so certified to Page 74 of 103 Packet Pg. 77 4.1.a be substantially complete, but will allow the Contractor reasonable access to complete or correct items on the tentative list. b. In lieu of the issuance of a Certificate of Substantial Completion as to part of the Work, the City may take over operation of a facility constituting part of the Work whether or not it is substantially complete if such facility is functionally and separately usable; provided that prior to any such takeover, the City and the Contractor have agreed as to the division of responsibilities between the City and the Contractor for security, operation, safety, maintenance, correction period, heat, utilities and insurance with respect to such facility. 12.6 Final Inspection Upon written notice from Contractor that the Work is complete, the Project Manager will make a final inspection with the Contractor and will notify the Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. The Contractor shall immediately take such measures as are necessary to remedy such deficiencies. 12.7 Final Application for Payment At the time of submission of its Final Application for Payment, the Contractor shall, unless otherwise determined by the Contract Administrator, provide the following information: 12.7.1 an affidavit for the Contractor confirming that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect the City's interests; 12.7.2 a general release executed by the Contractor in a form acceptable to the City waiving, upon receipt of final payment by the Contractor, all claims, except those claims previously made in writing to the City and remaining unsettled at the time of final payment; 12.7.3 all operating manuals, warranties and other deliverables required by the Contract Documents; 12.7.4 if applicable, certified payrolls from the Contractor and all Subcontractors; 12.7.5 "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" from the Contractor and each Subcontractor filed with the City and the Department of Labor and Industries; and 12.7.6 Certification of Use or Deferred Sales Tax Paid or both, and if required by the City, other data establishing payment or satisfaction of obligations, including, but not limited to, receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the City. If a Subcontractor refuses to furnish a release or waiver required by the City, the Contractor may furnish a bond satisfactory to the City to indemnify the City against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the City all money that the City may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. Page 75 of 103 Packet Pg. 78 4.1.a 12.8 Final Payment and Acceptance 12.8.1 If, on the basis of the Project Manager's observation of the Work during construction and final inspection, and the Contract Administrator and Project Manager's review of the final Application for Payment and accompanying documentation, the Project Manager is satisfied that the Work has been completed and the Contractor has fulfilled all of its obligations with regard to construction of the Project, the Project Manager will indicate approval of final payment by signing such invoice. The Contract Administrator will sign the final invoice as well and submit for final payment. The Project Manager will give written notice to the Contractor that the Work is acceptable subject to the provisions of Section 12.9. Otherwise, the Contract Administrator will return the Payment Application to the Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case the Contractor shall make the necessary corrections and resubmit the Application. If the Application and accompanying documentation are appropriate as to form and substance, the City will, within thirty (30) days after receipt, pay the Contractor. 12.8.2 Payment will be made to the Contractor only for those portions of the work that have been fully completed and accepted. 12.9 Contractor's Continuing Obligation The Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither recommendation of any progress or final payment by Project Manager, nor the issuance of a Certificate of Substantial Completion, nor any payment by the City to the Contractor under the Contract Documents, nor any use or occupancy of the Work or any part thereof by the City, nor any act of acceptance by the City nor any failure to do so, nor the issuance of a notice of acceptability by the Project Manager pursuant to section 12.8, nor any correction of Defective Work by the City shall constitute an acceptance of Work not in accordance with the Contract Documents or a release of the Contractor's obligation to perform the Work in accordance with the Contract Documents. 12.10 Waiver of Claims The making and acceptance of final payment shall constitute the Contractor's waiver of all claims by the Contractor against the City other than those previously made in writing and still unsettled. END ARTICLE 12 Page 76 of 103 Packet Pg. 79 4.1.a ARTICLE 13 SUSPENSION OF WORK AND TERMINATION 13.1 Suspend the Work The City may, at any time and without cause, suspend the Work or any portion for a period of not more than thirty (30) calendar days with written notice to the Contractor. Notice will state the date when work will resume. The Contractor will resume the work on said date. The Contractor will be allowed an increase in the Job Order price or an extension of the Job Order completion time or both directly attributable to any suspension if it makes a claim as provided in Article 10 unless suspension of the Work is mutually agreed upon by the City and the Contractor. 13.2 City May Terminate 13.2.1 Upon the occurrence of any one or more of the following events of default: a. Contractor is adjudged bankrupt or insolvent; b. Contractor makes a general assignment for the benefit of creditors; c. a trustee or receiver is appointed for Contractor or for any of Contractor's property; d. Contractor files a petition to take advantage of any debtor's act, or to reorganize under the bankruptcy or similar laws; e. Contractor repeatedly fails to supply sufficient skilled workmen or suitable materials or equipment; f. Contractor repeatedly fails to make prompt payments to Subcontractor or for labor, materials or equipment; g. Contractor disregards laws, ordinances, rules, regulations or orders of any public body having jurisdiction; h. Contractor disregards the authority of Project Manager or Contract Administrator; i. Contractor refuses or fails to prosecute Job Orders or any separable part thereof, with the diligence that will ensure its completion within the Job Order Completion Time or any extension or fails to complete the work within this time; or j. Contractor otherwise violates in any substantial way any provisions of the Contract Documents, this includes without limitation breach of applicable Federal Contract Clauses in a Federally Funded Job Order. The City may, after giving the Contractor and its Surety sixty (60) days' written notice specifying the event of default, terminate the services of the Contractor, exclude the Contractor from the site, and take possession of the Work and of all the Contractor's tools, appliances, equipment and machinery at the site and use the same to the full extent they could be used by the Contractor (without liability to the Contractor for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere, and finish the Work as the City may deem expedient. The City may complete the Work itself or with other contractors. The Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the Job Order Price exceeds the direct and indirect costs of completing Page 77 of 103 Packet Pg. 80 4.1.a the Work, including compensation for additional professional services, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor or its Surety shall pay the difference to the City. The Contractor and its sureties shall be liable for any other damage to the City resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. 13.2.2 Where the Contractor's services have been so terminated by the City, the termination will not affect any rights of the City against the Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due the Contractor by the City will not release the Contractor from liability. 13.2.3 Upon seven (7) days written notice to the Contractor, the City may without cause and without prejudice to any other right or remedy elect to abandon the Work and terminate the Contract. The City will have all remedies in law and equity, including the right to specific performance (or injunction or other appropriate equitable remedy), without further assistance, and the rights to termination or suspension as provided herein. In such case, the Contractor shall be paid for all work completed and accepted as complete by the Project Manager. 13.2.4 Inasmuch as the Contractor can be adequately compensated by money damages for any breach of this Contract, which may be committed by the City, the Contractor expressly agrees that no default, act or omission of the City shall constitute a material breach of this Contract, entitling the Contractor to cancel or rescind the Contract (unless the City directs the Contractor to do so) or to suspend or abandon performance. 13.2.5 If there is a dispute regarding a Federally Funded Job Order, the parties will use the dispute resolution in the Federal Contract Clauses, if any. 13.2.6 Unless otherwise directed by the City, the Contractor shall continue performance under this Contract while matters in dispute are being resolved 13.3 Termination for Convenience 13.3.1 In addition to the City's other termination rights, the City may terminate the Contract for convenience. Upon ten (10) days' written notice to the Contractor, the City may, for its convenience and without cause, elect to terminate this Contract or any portion of this Contract. 13.3.2 If the Work or any portion thereof is terminated for convenience, the Contractor shall, subject to the limitation set forth in 13.3.3 below, be entitled to be paid that portion of the Job Order Price that corresponds to the percentage of work that is complete and accepted, in accordance with the Contract Documents, but shall not be entitled to any other costs or damages whatsoever including without limitation fee or profit on terminated Work. If the Contractor has any property in its possession belonging to the City, the Contractor will account for the same, and dispose of it in the manner the City directs. 13.3.3 The total sum to be paid to the Contractor under this Section 13.3 shall not exceed the Job Order Price(s) outstanding at the time of termination, as reduced by the amount of Page 78 of 103 Packet Pg. 81 4.1.a payments otherwise made, the price of Work not terminated, and as otherwise permitted by this Contract. The amounts payable to the Contractor shall exclude the fair value of property not under the City's control which is destroyed, lost, stolen or damaged so as to become undeliverable to the City. 13.3.4 Any claim, request for equitable adjustment or other demand for extra compensation or time extension by the Contractor arising from or related to acts, events, occurrences or omissions prior to the effective date of the convenience termination shall continue to be subject to and resolved in accordance with the rules (contractual or legal, express or implied) in effect prior to the termination. The convenience termination will not convert this Contract into a cost reimbursement contract. 13.4 Minimum Contract Value Not Achieved If, in the Base Term, the City, at no fault of the Job Order Contractor, fails to issue Job Orders totaling at least the Minimum Contract Value, then the Contractor's sole remedy is as set forth in RCW 39.10.440(7). 13.5 Contractor May Stop Work or Terminate If, through no act or fault of the Contractor or its subcontractors, the Work is suspended for a period of more than sixty (60) days by the City or under an order of court or other public authority, then the Contractor may, upon seven (7) days' written notice to the City, terminate the Contract and recover from the City payment for all Work completed and accepted. ARTICLE 14 NOT USED END OF ARTICLE 13 END OF ARTICLE 14 Page 79 of 103 Packet Pg. 82 4.1.a ARTICLE 15 MISCELLANEOUS 15.1 General Requirements 15.1.1 Should the City or the Contractor suffer injury or damage to its person or property because of any error, omission or act of the other party or of any of the other party's employees or agents or others for whose acts the other party is legally liable, claim shall be made in writing to the other party within a reasonable time of the first observance of such injury or damage. 15.1.2 The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon Contractor by sections 11.1, and 13.2 and all of the rights and remedies available to City thereunder, shall be in addition to, and shall not be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by law or contract, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this section shall be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. All representations, warranties and guarantees made in the Contract Documents shall survive final payment and termination or completion of this Contract. 15.2 Giving Notice Whenever any provision of the Contract Documents requires the giving of written notice it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 15.3 Computation of Time When any period of time is referred to in the Contract Documents by days, it shall be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation. 15.4 Non -Discrimination The Contractor shall not discriminate on the grounds of race, color, sex or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor shall not participate either directly or indirectly in such discrimination, including discrimination in employment practices. In the event of the Contractor's noncompliance with the nondiscrimination provisions of the Contract Documents or applicable law, the City may impose such sanctions as it, or the City's funding agencies, may determine to be appropriate, including, but not limited to: (a) withholding of payments to the Contractor until the Contractor complies, and (b) termination or suspension of the Contract, in whole or in part. Page 80 of 103 Packet Pg. 83 4.1.a 15.5 Contractor Selection 15.5.1 The City may award an individual Job Order to any selected Contractor. Selection of the Contractor and award of the Job Order will be in compliance with established City procedures and based on one or more of the following criteria: 15.5.2 Rotational selection among all Contractors, unless otherwise determined by the City. 15.5.3 Evaluation of past and current performance on Job Orders of a similar nature and type of work, project size, construction management challenges, schedule performance, design management requirements, etc. 15.5.4 Balancing Job Order volume among Contractors. 15.5.5 Price, as determined by the Adjustment Factors of the Contractors. 15.5.6 Limitations posed by bonding capacity of the Contractors. 15.5.7 Other appropriate criteria as deemed in the best interest of the City. 15.6 Contractor's Personnel 15.6.1 The Contractor shall assign a full-time person as its representative for this Contract. This person shall be acceptable to the City and shall have a cell phone at which he or she can be reached at all times. 15.6.2 The Contractor shall have an office within the City of Edmonds or within close proximity (no more than 20 miles) of the City of Edmonds. 15.6.3 The Contractor shall also have at all times an Office Manager and a Superintendent assigned to this Contract. Additional staff will be provided depending on the volume of work. For each Job Order issued, the Contractor shall identify the Superintendent responsible for that Job Order. The Superintendent shall be reachable 24 hours a day, seven days a week. If the named Superintendent is not available because of illness or vacation or the like, the Contractor shall notify the City of a substitute Superintendent. At all times, the Contractor shall provide at least one Superintendent for every four Job Orders. Whenever, in the sole discretion of the City, the Contractor is not providing a sufficient level of supervision, the City may direct the Contractor to increase the level of supervision for any or all projects, including but not limited to the right to direct the Contractor to assign a full time, dedicated Superintendent for any project; submit daily management, inspection, activity, and planning reports; substitute subcontractors; submit daily photographs of the work in place and the work areas prepared for the next day's work; and develop a site specific quality control program, all at no cost to the City. END ARTICLE 15 Page 81 of 103 Packet Pg. 84 4.1.a ARTICLE 16 JOC PROCEDURE FOR ORDERING WORK 16.1 Initiation of a Job Order. 16.1.1 As the need exists, the Contract Administrator will notify the Contractor of a Project, schedule a Joint Scope Meeting, and issue a Notice of Joint Scope Meeting. The Contractor does not have the right to refuse to perform any Project, Pre -priced Task, or Non-Prepriced Task. 16.1.2 The Contractor shall attend the Joint Scope Meeting and discuss, at a minimum: a. general scope of the work to be performed; b. possible alternatives for performing the work and value engineering; c. access to the site and protocol for admission; d. hours of operation; e. staging area and areas that are off-limits; f. requirements for catalog cuts, technical data, samples and shop drawings; g. requirements for professional services, sketches, drawings, and specifications; h. construction duration, due date for Detailed Scope of Work; i. the presence of hazardous materials; j. organization of Price Proposal — by location, by corner, etc. k. date on which the Job Order Proposal is due. I. if the Job Order will be a Federally Funded Job Order, the applicable Federal Contract Clauses, such as, for example, Davis -Bacon and DBE requirements. 16.1.3 Upon completion of the joint scoping process, the Contractor will prepare a draft Detailed Scope of Work referencing any sketches, drawings, photographs, and specifications required to document accurately the work to be accomplished. The City shall review the Detailed Scope of Work and request any required changes or modifications. When an acceptable Detailed Scope of Work is complete, the City will issue a Request for Proposal that will require the Contractor to prepare a Job Order Proposal within a certain period of time. The Detailed Scope of Work will be the basis on which the Contractor will develop its Job Order Proposal and the City will evaluate the same. The Contractor does not have the right to refuse to perform any task or any work in connection with a particular Project. 16.1.4 The City may, at its option, include quantities in the Detailed Scope of Work if it helps to define the Detailed Scope of Work, if the actual quantities required are not known or cannot be determined at the time the Detailed Scope of Work is prepared, if the Contractor and the City cannot agree on the quantities required, or for any other reason as determined by the City. In all such cases, the City shall issue a Supplemental Job Order adjusting the quantities appearing in the Detailed Scope of Work to the actual quantities. 16.1.5 If the Contractor requires additional information to clarify the Detailed Scope of Work before preparing the Job Order Proposal, the Contractor will make such request quickly so that the Job Order Proposal can be submitted on time. 16.2 Preparation of the Price Proposal. 16.2.1 The Contractor's Job Order Proposal shall include, at a minimum: a. Job Order Price Proposal; Page 82 of 103 Packet Pg. 85 4.1.a b. Support documentation for Non-Prepriced Tasks; c. Required drawings or sketches; d. List of anticipated Subcontractors including a MBE/WBE Certification if required; e. Construction schedule; f. Other requested documents. 16.2.2 The Job Order Price shall be the value of the approved Job Order Price Proposal. 16.2.3 The value of the Job Order Price Proposal shall be calculated by summing the total of the calculations for each Pre -priced Tasks (Unit Price x quantity x Adjustment Factor) plus the value of all Non-Prepriced Tasks. 16.2.4 The Contractor will prepare Price Proposals in accordance with the following: a. Pre -priced Task: A task described for which a unit price is set forth in the Construction Task Catalog°. The Contractor shall select the appropriate Pre - priced Tasks, enter the accurate quantities, and select the appropriate Adjustment Factor to be used for each such Pre -priced Task. The Contractor shall use the Adjustment Factors in effect on the date the Price Proposal is due, even though the Job Order may be issued after the Adjustment Factors have been updated. b. Non-Prepriced Task: A task that is not set forth in the Construction Task Catalog°. c. Information submitted in support of Non-Prepriced Tasks shall include, but not limited to the following: 1) Catalog cuts, specifications, technical data, drawings, or other information as required to evaluate the task. 2) If the Contractor will perform Work with its own forces, it must submit three (3) independent quotes for all material to be installed and will use Pre -priced Tasks for labor and equipment from the Construction Task Catalog°. If the Work is to be subcontracted, the Contractor must submit three (3) independent quotes from subcontractors. The Contractor will not submit a quote or bid from any supplier or subcontractor that the Contractor is not prepared to use. The City may require additional quotes and bids if the suppliers or subcontractors are not acceptable or if the prices are not reasonable. If three (3) quotes or bids cannot be obtained, the Contractor will provide the reason in writing for the City's approval. If approved, less than three (3) quotes or bids will be allowed. 3) After a Non-Prepriced Task has been approved by the City, the Unit Price for such task will be established, following approval by the City, and fixed as a permanent Non- Prepriced Task which will no longer require price justification. 4) The City's determination as to whether a task is a Pre -priced Task or a Non-Prepriced Task shall be final, binding and conclusive as to the Contractor. Page 83 of 103 Packet Pg. 86 4.1.a 16.2.5 Whenever, because of trade jurisdiction rules or small quantities, the cost of a minor task in the Job Order Price Proposal is less than the cost of the actual labor and material to perform such task, the City may permit the Contractor to be paid for such task as a Non- Prepriced Task, or use Pre -priced labor tasks and material component pricing to cover the actual costs incurred. Provided, however, that there is no other work for that trade on the Project or other work for that trade cannot be scheduled at the same time and the final charge does not exceed One Thousand Dollars ($1,000). 16.2.6 The Contractor shall make the necessary arrangements for and obtain all filings and permits required for the Work, including the preparation of all drawings, sketches, calculations and other documents and information that may be required therefor. If the Contractor is required to pay an application fee for filing a project, a fee to obtain a building L permit, or any other permit fee to the City, State or some other governmental or regulatory o agency, then the amount of such fee paid by the Contractor for which a receipt is obtained U shall be treated as a Reimbursable Task to be paid without mark-up. The cost of expediting services or equipment use fees are not reimbursable. o 0 16.2.7 The Contractor shall provide incidental engineering and architectural services required in connection with a particular Job Order including drawings and information required for 3 filing. Q 16.2.8 The Contractor's Job Order Proposal shall be submitted by the date indicated on the Request for Proposal. All incomplete Job Order Proposals shall be rejected. The time allowed for preparation of the Contractor's Job Order Proposal will depend on the complexity and urgency of the Job Order but should average between seven and fourteen days. On complex Job Orders, such as Job Orders requiring incidental engineering/architectural drawings and approvals and permits, allowance will be made to provide adequate time for preparation and submittal of the necessary documents. 16.2.9 In immediate response situations and minor maintenance and repair Job Orders requiring immediate completion, the Job Order Proposal may be required quickly and the due date will be so indicated on the Request for Proposal or, as described below, the Contractor may be directed to begin work immediately with the paperwork to follow. 16.2.10 For purposes of Using the Construction Task Catalog®, the project site is defined as the exterior perimeter of a building. For work not performed in a building, the project site is defined as the limits of the work area. 16.2.11 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the price submitted. It is the Contractor's responsibility to include the necessary tasks and quantities in the Job Order Price Proposal and apply the appropriate Adjustment Factor(s) prior to delivering it to the City. 16.2.12 If the Contractor requires clarifications or additional information regarding the Detailed Scope of work in order to prepare the Job Order Proposal, the request must be submitted Page 84 of 103 Packet Pg. 87 4.1.a so that the submittal of the Job Order Proposal is not delayed. 16.2.13 In the event the Contractor is required to work in a secured facility or location where labor, materials, and equipment must be inspected, the Contractor will be permitted to add labor hours to the Job Order Price Proposal to account for lost time as a result of such inspection. 16.2.14 The final price submitted for Non-Prepriced Tasks shall be according to the following formula: For Non-Prepriced Tasks Performed with Contractor's Own Forces: A = The hourly rate for each trade classification not in the Construction Task Catalog° multiplied by the quantity; B = The rate for each piece of Equipment not in the Construction Task Catalog° multiplied by the quantity; C = Lowest of three (3) independent quotes for all materials, unless a lower number of quotes is approved by the Owner with a letter of justification. Total for a Non-Prepriced Tasks performed with Contractor's Own Forces _ (A+B+C) x Non-Prepriced Task Adjustment Factor For Non-Prepriced Tasks Performed by Subcontractors: If the Non-Prepriced Task is to be subcontracted, the Contractor must submit three (3) independent quotes for the work. D = Lowest of three (3) Subcontractor Quotes Total Cost for Non-Prepriced Tasks performed by Subcontractors = D x Non-Prepriced Task Adjustment Factor a. After a Non-Prepriced Task has been approved by the City, the Unit Price for such task will be established, and fixed as a permanent Non-Prepriced Task which will no longer require price justification. b. The City's determination as to whether a task is a Pre -priced Task or a Non-Prepriced Task will be final, binding and conclusive to the Contractor. 16.2.15 The Contractor will make the necessary arrangements for and obtain all filings and permits required for the Work, including the preparation of all drawings, sketches, calculations and other documents and information that may be required. If the Contractor is required to pay an application fee for filing a project, a fee to obtain a building permit, or any other permit fee to the City, State or some other governmental or regulatory agency, then the amount of such fee paid for which a receipt is obtained will be treated as a Reimbursable Task to be paid without markup. Page 85 of 103 Packet Pg. 88 4.1.a 16.2.16 The Contractor shall provide incidental engineering and architectural services required in connection with a particular Job Order including drawings and information required for filing. 16.2.17 The Contractor's Job Order Proposal is to be submitted by the date indicated on the Request for Proposal. All incomplete Job Order Proposals shall be rejected. The time allowed for preparation of the Contractor's Job Order Proposal will depend on the complexity and urgency of the Job Order but should average between seven (7) and fourteen (14) days. On complex Job Orders, such as Job Orders requiring incidental engineering/architectural drawings and approvals and permits, allowance will be made to provide adequate time for preparation and submittal of the necessary documents. 16.2.18 In emergency situations and minor maintenance and repair Job Orders requiring immediate completion, the Job Order Proposal may be required quickly and the due date will be so indicated on the Request for Proposal. 16.2.19 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the price submitted. It is the Contractor's responsibility to include the necessary tasks and quantities in the Price Proposal and apply the appropriate Adjustment Factor(s) prior to delivering it to the City. 16.2.20 If the Contractor requires clarifications or additional information regarding the scope of work in order to prepare the Job Order Proposal, the request must be submitted so that the submittal of the Job Order Proposal is not delayed. 16.3 Review of the Job Order Proposal and Issuance of the Job Order 16.3.1 The City will evaluate the entire Price Proposal and compare these with the City's estimate of the Detailed Scope of Work to determine the reasonableness of approach, including the appropriateness of the tasks and quantities proposed. All incomplete Job Order Proposals will be rejected. The City will review the Price Proposal to determine the accuracy of the Pre -priced Tasks, quantities, Adjustment Factors, and Non-Prepriced Tasks. 16.3.2 The Contractor may choose the means and methods of construction; subject however, to the City's right to reject any means and methods proposed by the Contractor that: a. Will constitute or create a hazard to the work, or to persons or property; or b. Will not produce finished Work in accordance with the terms of the Contract; or c. Unnecessarily increases the price of the Job Order when alternative means and methods are available. 16.3.3 The City reserves the right to reject a Job Order Proposal or cancel a Project for any reason. The City also reserves the right not to issue a Job Order if it is determined to Page 86 of 103 Packet Pg. 89 4.1.a be in the best interests of the City. The City may perform such work by other means. The Contractor will not recover any costs arising out of or related to the development of the Job Order including but not limited to the costs to attend the Joint Scope Meeting, review the Detailed Scope of Work, prepare a Job Order Proposal including incidental architectural and engineering services, subcontractor costs, and the costs to review the Job Order Proposal with the City. 16.3.4 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the lump sum price submitted. It is the Contractor's responsibility to include the necessary Pre- priced Tasks and Non-Prepriced Tasks and quantities in the Job Order Price Proposal prior to delivering it to the City. 16.3.5 It is the Contractor's responsibility to include the necessary Pre -priced Tasks and Non-Prepriced Tasks, accurate quantities, and correct Adjustment Factors in the Price Proposal prior to delivering it to the City. 16.3.6 If the Job Order Proposal is found to be complete and accurate, The City may issue a Job Order to the Contractor. 16.3.7 The Job Order signed by The City and delivered to the Contractor constitutes The City's acceptance of the Contractor's Job Order Proposal. 16.3.8 A Job Order will reference the Detailed Scope of Work and set forth the Job Order Completion Time and the Job Order Price. The Job Order Price shall be the value of the approved Price Proposal. 16.3.9 All clauses of this Contract shall apply to each Job Order. 16.3.10 The Contractor will be paid the Job Order Price for completing the Detailed Scope of Work within the Job Order Completion Time. 16.3.11 The City, without invalidating the Job Order, may order changes in the Detailed Scope of Work by adding to, changing, or deleting from the Detailed Scope of Work, by issuing a Supplemental Job Order. All Supplemental Job Orders shall be developed in accordance with these procedures for ordering work. 16.3.12 The City may decide not to issue a Job Order under development, may decide to cancel a Job Order or any portion of a Job Order, or cancel a Project or any portion of a Project, for any reason. In such case, the Contractor shall not recover any costs arising out of or related to the development of the Job Order including but not limited to attending the Joint Scope Meeting, preparing or reviewing the Detailed Scope of Work, preparing a Job Order Proposal (including incidental architectural and engineering services), subcontractor costs, or reviewing the Job Order Proposal with The City. The City may perform such work by other means. 16.3.13 A Job Order will reference the Detailed Scope of Work and set forth the Job Order Completion Time, and the Job Order Price. A separate Job Order will be issued for each Project. Extra work, credits, and deletions will be contained in a Page 87 of 103 Packet Pg. 90 4.1.a Supplemental Job Order. The Job Order Price shall be a lump sum, fixed price for the completion of the Detailed Scope of Work. 16.3.14 Each Job Order provided to the Contractor will reference the Detailed Scope of Work and set forth the Job Order Price and the Job Order Completion Time. All clauses of this Contract shall be applicable to each Job Order. The Job Order, signed by the City and delivered to the Contractor constitutes the City's acceptance of the Contractor's Job Order Proposal. A signed copy of the Job Order will be provided to the Contractor. 16.3.15 In the event that immediate emergency response is necessary, the Contractor shall be required to follow alternative procedures as established by the City. The Contractor shall begin work as directed notwithstanding the absence of a fully r developed Request for Proposal, Detailed Scope of Work, or Job Order. The 0 Contractor shall be compensated for such work as if the work had been ordered under the standard procedures. The Contractor must submit to the City's Representative, o their emergency procedure/ safety plan prior to starting work. The Contractor must be 0 responsible for quality assurance and quality control. L 16.3.16 Federally Funded Job Orders a When the City initiates a Job Order, the City will specify whether the Job Order is a Federally Funded Job Order or not. If the Job Order has no such specification, then the Job Order is not a Federally Funded Job Order. A Federally Funded Job Order is subject to the Federal Contract Clauses, which will be provided by the City. In the event of irreconcilable conflict between the Federal Contract Clauses applicable to a Federally Funded Job Order and other Contract Documents, such Federal Contract Clauses control. The Federal Contract Clauses do not apply to Job Orders that are not Federally Funded Job Orders. END ARTICLE 16 Page 88 of 103 Packet Pg. 91 4.1.a ARTICLE 17 ENGINEERING NEWS RECORD CONSTRUCTION COST INDICES ADJUSTMENT OF THE ADJUSTMENT FACTORS 17.1 Economic Price Adjustment: The Adjustment Factors may be updated on each anniversary of the Contract date to account for changes in construction costs, provided, the Contractor requests in writing, approximately fourteen (14) to thirty (30) days prior to the anniversary of the Contract date, that the Adjustment Factors be updated. Such request shall be delivered to the City and to the Consultant/Gordian. In the event the Contractor fails to deliver the request timely, then the City will determine the date on which the Adjustment Factors will be updated, but in no event will such date be later than thirty (30) days after the written request is received by the City. Thereafter, the Contractor's Adjustment Factors will be adjusted according to the following: 17.2 The Contractor's Normal Working Hours and Other than Normal Working Hours Adjustment Factors will be adjusted according to the following: 17.2.1 A Base Year Index will be calculated by averaging the 12-month Construction Cost Indices (CCI) for Seattle, WA, published in the Engineering News Record (ENR) for the twelve (12) months immediately prior to the month of the bid due date (e.g. April bid date, Base Year Index is April of the prior year to March of the bid date year). 17.2.2 A Current Year Index will be calculated by averaging the 12-month Construction Cost Indices (CCI) for Seattle, WA, published in the Engineering News Record (ENR) for the twelve (12) months beginning with the month of anniversary of the bid due date (e.g. April bid date, Current Year Index is April of the prior year to March of the current year). 17.2.3 The Economic Price Adjustment will be calculated by dividing the Current Year Index by the Base Year Index. 17.2.4 The Contractor's original Adjustment Factors will be multiplied by the Economic Price Adjustment to obtain the Contractor's new Adjustment Factors effective for the next twelve (12) months. 17.2.5 Averages shall be obtained by summing the 12-month indices and dividing by twelve (12). 17.3 All calculations in this article will be carried to the fifth decimal place and rounded to the fourth decimal place. The following rules shall be used for rounding: 17.3.1 The fourth decimal place shall be rounded up when the fifth decimal place is five (5) or greater. 17.3.2 The fourth decimal place shall remain unchanged when the fifth decimal place is less than five (5). Page 89 of 103 Packet Pg. 92 4.1.a 17.4 Engineering News Record occasionally revises indices. Engineering News Record Construction Cost Indices used in the calculations described above will be those currently published at the time the Economic Price Adjustment calculation is performed. No retroactive adjustments will be made as a result of an Engineering News Record revision. Revised Construction Cost Indices, if any, will be used in subsequent calculations. 17.5 Under all circumstances, should the Contractor submit a Job Order Proposal with inaccurate Adjustment Factors, the act of submission by the Contractor is a waiver of all rights to any further compensation above the Job Order Price submitted in the Job Order Proposal. 17.6 The Contractor cannot delay submission of the Job Order Proposal past the due date to take advantage of a scheduled update of the Adjustment Factors. In that event, the Contractor shall use the Adjustment Factors that would have been in effect without the delay. 17.7 The Adjustment Factor for Non-Prepriced Tasks will remain constant for the duration of the Contract. END ARTICLE 17 Page 90 of 103 Packet Pg. 93 4.1.a ARTICLE 18 Software, JOC System License, and Cooperative Purchasing 18.1 JOC System License 18.1.1 The City selected The Gordian Group's (Gordian) Job Order Contracting (JOC) System for their JOC program. The Gordian JOC Solution includes Gordian's proprietary JOC System Software and JOC Applications, construction cost data (Construction Task Catalog@,) which will be used by the Contractor solely for the purpose of fulfilling its obligations under this Contract, including preparation and submission of Job Order Proposals, subcontractor lists, and other requirements specified by the City. Contractor's use, in whole or in part, of Gordian's JOC Applications, Construction Task Catalog® and other proprietary materials provided by Gordian for any purpose other than to execute work under this Contract for the CITY is strictly prohibited unless otherwise approved in writing by Gordian. The Contractor shall be required to execute Gordian's JOC System License and Fee Agreement and pay a one percent (1 %) JOC System License Fee to obtain access to the Gordian JOC Solution. 18.2 Cooperative Purchasing 18.2.1 RCW 39.34 allows cooperative purchasing between public agencies (political subdivisions) in the State of Washington. Public agencies that file an Interlocal Joint Purchasing Agreement with the City of Edmonds may also wish to procure the goods and/or services herein offered by the selected Contractor. The selected Contractor shall have the option of extending its offer to the City of Edmonds to other agencies for the same cost, terms and conditions. 18.2.2 The City of Edmonds does not accept any responsibility for agreements, contracts or purchase orders issued by other public agencies to the Contractor. Each public agency accepts responsibility for compliance with any additional or varying laws and regulations governing purchase by or on behalf of the public agency. The City of Edmonds accepts no responsibility for the performance of the Contractor in providing goods and/or services to other public agencies, nor any responsibility for the payment price to the Contractor for other public agency purchases. END ARTICLE 18 Page 91 of 103 Packet Pg. 94 4.1.a ARTICLE 19 COMPLIANCE WITH THE JOC RCW REQUIREMENTS 19.1 CONTRACTOR'S RESPONSIBILITY Contractor acknowledges that it has carefully examined the RFP documents and the Job Order Contracting RCW's. For example, the Contract is subject to RCW 39.10.200; 39.10.210; 39.10.420; 39.10.430; 39.10.440; 39.10.450; 39.10.460; and, 39.10.470. 19.2 MAXIMUM JOB ORDER VALUE The maximum dollar amount for an individual Job Order is Five Hundred Thousand y dollars ($500,000) pretax. All Job Orders for the same project (original plus any Supplemental Job Orders) shall be treated as a single Job Order for the purpose of the $500,000 limit. A Job Order issued for a particular project may not exceed $500,000 0 excluding sales tax and Gordian fees. As required by RCW 39.10.450(3), no more than twenty percent of the dollar value of a Job Order may consist of items of work not o contained in the Unit Price book. As required by RCW 39.10.450(4), any new permanent, -0 enclosed building space constructed under a Job Order shall not exceed three thousand (3,000) gross square feet. 3 19.3 ADJUSTMENT FACTORS AND CONSTRUCTION TASK CATALOG® a The Contractor is paid for the Job Order based upon a fixed percentage multiplier (Adjustment Factor) and fixed prices based on The Gordian Group's Construction Task Catalog° agreed to in the initial contract. Everything that is to be included in the Contractor's Adjustment Factors is listed and identified in the Construction Task Catalog° under Construction Task Catalog° Section and "Using the Construction Task Catalog°," pages 00-1 through 00-7. 19.4 PREVAILING WAGE RATES TO BE PAID A. Prior to making any payment, the City must receive a Labor and Industries approved copy of the "Statement of Intent to Pay Prevailing Wages" form from the Contractor, all sub -contractors and lower -tiers. Each progress payment application is to include a signed statement that prevailing wages have been paid. With final invoicing of a project, the City must receive a Labor and Industries certified copy of the "Affidavit of Wages Paid" form from the Contractor, all sub -contractors and lower -tiers. B. It is the Contractor's sole responsibility to ensure that the approved Intents and certified Affidavits are filed from all sub -contractors and lower -tiers and filed with the City for each Job Order. C. Job Order contractors shall pay prevailing wages for all work that would otherwise be subject to the requirements of chapter 39.12 RCW. Prevailing wages for all work performed pursuant to each Job Order must be the rates in effect at the time the individual Job Order is issued. D. If the Job Order is Funded by the Federal Transit Administration, the Davis -Bacon Act and Copeland Anti -Kickback applies. Page 92 of 103 Packet Pg. 95 4.1.a 19.5 EXECUTED OMWBE PLAN A. Per RCW 39.10.450, a public body may issue no Job Orders under a Job Order Contract until it has approved, in consultation with the Office of Minority and Women's Business Enterprises or the equivalent local agency, a plan prepared by the Contractor that equitably spreads certified women and minority business enterprise subcontracting opportunities, to the extent permitted by the Washington state civil rights act, RCW 49.60.400, among the various subcontract disciplines. B. The executed plan is required before the City will sign the Contract. 19.6 SUBCONTRACTING At least ninety percent (90%) of all work contained in a Job Order Contract must be subcontracted to entities other than the Contractor. The Contractor must distribute contracts as equitably as possible among qualified and available subcontractors including minority and woman -owned subcontractors to the extent permitted by law. 19.7 RETAINAGE The City requires each Contractor to provide a Retainage Bond in the penal sum equal to 5% of the Maximum Contract Value or $100,000 whichever is greater. If the cumulative amount of required retainage under Chapter 60.28 RCW exceeds this amount, the Contractor shall deliver a new Retainage Bond as required by the City. The Contractor must use a Retainage Bond form acceptable to the City. 19.8 PUBLIC RECORDS Under Washington state public records laws, records and documents including but not limited to written, printed, graphic, electronic, photographic or voice mail materials and/or transcriptions, recordings or reproductions provided to City or used by the City in connection to the Contract Documents become a public record subject to mandatory disclosure upon request by any person, unless the records and documents are exempt from public disclosure by a specific provision of law. The City has no obligation to enforce any exemption. Contractor will fully cooperate with the City to comply with the Washington state public records laws. 19.9 AUDITS AND RETENTION OF RECORDS A. All of the Project Records related to this Contract shall be open to inspection, audit, and/or copying by the City: i. During the Contract Time; For a period of not less than six (6) years after the date of Final Acceptance of the last Work or termination of the Contract. The Contractor shall also ensure that the wage, payroll and cost records of all Subcontractors and Suppliers at all tiers is retained and open to similar inspection or audit for the period required above by incorporating the provisions of this Audit section into any agreements with Subcontractors or Suppliers related to this Contract; and Page 93 of 103 Packet Pg. 96 4.1.a iii. If any Claim, audit, or litigation arising out of, in connection with, or related to this Contract is initiated, all documents and records shall be resolved or completed, whichever occurs later. B. The Contractor, its Subcontractors and Suppliers will make a good faith effort to cooperate with the City when the City gives notice of its need to inspect or audit Project Records. Cooperation will include assistance as may be reasonably required in the course of inspection or audit, including access to personnel with knowledge of the contents of the records being inspected or audited so that the information in the records is properly understood by the persons performing the inspection or audit. Cooperation will also include establishing a specific mutually agreeable timetable for making the records available for inspection by the City and its designee. Unless otherwise agreed, if the Contractor, its Subcontractors and Suppliers cannot make at least some of the relevant records available for inspection within fourteen (14) days of the City's written request, cooperation will necessarily entail providing the City with a reasonable explanation for the delay in production of records. Failure to cooperate will impact future responsibility determinations. C. The Contractor agrees that no Claim will be made against the City for the Work described herein unless the Contractor makes available to the City all documents and records. Failure to maintain and retain sufficient records to allow the City to verify all costs or damages or failure to permit the City or its designee access to the books and records shall constitute a waiver of the rights of the Contractor, Subcontractor, and Supplier to claim or be compensated for any damages, additional time or money under this Contract and shall bar any recovery there under. D. Inspection, audit, and/or copying of Project Records may be performed by the City at any time with not less than fourteen (14) days written notice; provided however, if an audit is to be commenced more than sixty (60) days after Final Acceptance of the Contract, the Contractor will be given thirty (30) days' notice of the time when the audit or inspection is to begin. E. The Contractor and its Subcontractors and Suppliers shall provide adequate facilities, acceptable to the City, for inspection, auditing, and/or copying during normal business hours. F. No additional compensation will be provided to the Contractor, its Subcontractors, or Suppliers for time or money spent in complying with the requirements of this Audit section. If the Contractor is formally dissolved, assigns or otherwise divests itself of its legal capacity under this Contract, then it will immediately notify the City and preserve such records, at its expense, as directed by the City. G. This Audit Section shall survive for six (6) years after the termination or expiration of this Contract, or conclusion of all Claims, audits or litigation, whichever occurs later. H. At a minimum, the following documents shall be considered Project Records and made available for inspection, auditing and copying: i. Daily time cards, time -sheets, daily reports, inspection reports, and supervisor's reports; ii. Insurance, welfare, and benefits records; Page 94 of 103 Packet Pg. 97 4.1.a iii. Payroll registers; iv. Earnings records; v. All relevant tax forms and records, including any state and federal payroll tax rate schedules governing the employer's payroll tax rates paid on behalf of employees that work on the project and any payroll tax forms summarizing the amounts paid; vi. Material invoices and requisitions; vii. Material cost distribution worksheets; viii. Equipment records including a list of company -owned equipment and an equipment distribution report containing equipment descriptions, equipment number, equipment rates, recorded equipment hours, phase or cost codes, dates, and any other relevant L information as related to how equipment was recorded to the project; o ix. Contractors' rental agencies', Subcontractors', and lower tier subcontractors' invoices; 0 x. Contracts, purchase orders and agreements between the Contractor and each of its c Subcontractors, and all lower tier subcontractor contracts and supplier contracts; L A. Subcontractors' and lower tier subcontractors' payment certificates/payment 3 applications; Q xii. Canceled checks, payroll and Contractors; c xiii. Job cost reports, including both a job cost summary report comparing budgeted amounts to recorded amounts by cost type and phase or cost code and a job cost 2 history/detail/transaction report listing each individual transaction by phase or cost US code; E L xiv. General Ledger; U° xv. Cash disbursements journal; xvi. All documents which relate to each and every claim together with all documents E which support the amount of damages to each claim; xvii. All schedule documents, including man -loaded schedules, work plans, planned a resource codes, phasing documents and summaries; xviii. All other documents, including email, related to the Project, Claims, or W Supplemental Job Orders; xix. Any documentation or information relied upon for the purposes of translating the bid a amounts to original budget amounts; xx. Original budget and updated budgets used for tracking job performance throughout the project; xxi. Labor distribution reports summarizing straight time, overtime, and double time by employee and also separately summarizing base wage amounts versus labor burden and benefit amounts; Page 95 of 103 Packet Pg. 98 4.1.a xxii. Copies of all draft and approved change orders including a supplementary documentation or information relied upon for the purposes of pricing the change orders; xxiii. To the extent any of the above -referenced records exist in machine readable format, the Contractor will make them available in that form. This requirement specifically includes but is not limited to an obligation to provide the information and access in the native format in which it is maintained by the Contractor. The Contractor will, as reasonably requested by the City, provide read-only access to and reasonable technical support necessary to make use of any enterprise or legacy software utilized by the Contractor to manipulate and/or store the relevant data. 19.10 PUBLIC NOTICE REQUIREMENTS The Contractor will publish notification of intent to perform public works projects at the beginning of each contract year in a statewide publication and in a legal newspaper of general circulation in every county in which the public works projects are anticipated, per RCW 39.10.440 (5). 19.11 PUBLIC INSPECTION OF CERTAIN RECORDS -PROTECTION OF TRADE SECRETS A. RCW 39.10.470(1) and (2) state as follows: (1) Except as provided in subsections (2) and (3) of this section, all proceedings, records, contracts, and other public records relating to alternative public works transactions under this chapter shall be open to the inspection of any interested person, firm, or corporation in accordance with Chapter 42.56 RCW. (2) Trade secrets, as defined in RCW 19.108.010, or other proprietary information submitted by a bidder, offeror, or contractor in connection with an alternative public works transaction under this chapter shall not be subject to Chapter 42.56 RCW if the bidder, offeror, or contractor specifically states in writing the reasons why protection is necessary, and identifies the data or materials to be protected. B. The following shall govern to the application of RCW 39.10.470 to this Contract and the Work: 1. Proprietary information and trade secrets must be clearly identified as "CONFIDENTIAL." 2. If any document or record does not clearly identify the "CONFIDENTIAL" portions, the City will not notify the Contractor that such documents and records will be made available for inspection and copying, and the City may publicly disclose such non - clearly identified portions with no liability whatsoever to the Contractor. 3. If a request is made for disclosure of material or any portion marked "CONFIDENTIAL," the City will determine whether the material should be made available under the law. If the City determines that the material is subject to disclosure, the City will seek to notify the Contractor of the request and allow the proposer ten (10) business days after such notification to take appropriate legal action in Snohomish County Superior Court at the Contractor's sole expense and Page 96 of 103 Packet Pg. 99 4.1.a liability. If the Contractor does not within ten (10) business days serve the Office of the City Attorney with a copy of an order entered by the Superior Court that expressly prohibits the City from disclosure of the material marked "CONFIDENTIAL," then the proposer will be deemed to have consented to the public disclosure of the material marked "Confidential" and the City may publicly disclose such material without any liability whatsoever to Contractor. 4. To the extent that the City withholds from disclosure all or any portion of Contractor's material marked "CONFIDENTIAL", the Contractor shall indemnify, defend and hold harmless the City of Edmonds from all lawsuits, liabilities, losses, damages, penalties, attorneys' fees and costs the City incurs arising from or relating to such withholding from disclosure. 0 U L END OF SECTION 19 0 U L L 0 i L 3 Q Page 97 of 103 Packet Pg. 100 4.1.a SUPPLEMENTARY CONDITIONS — FEMA AND OTHER FEDERALLY FUNDED PROJECT NOTE: These Supplementary Conditions apply to FEMA and other federally funded Cites projects. The City anticipates that most projects performed thru the Job Order Contracting_ program will not be FEMA funded or otherwise federally funded. The Agreement/Contract (collectively, "Contract") may be funded in whole or in part by federal grant funding received by The City of Edmonds from the Federal Emergency Management Agency ("FEMA"), which is part of the United States Department of Homeland Security ("DHS"), or other Federal Funding sources. Therefore, Consultant/Contractor (collectively, the "Contractor") must comply with all federal laws and regulations applicable to the receipt of FEMA grants, including, but not limited to, the contractual provision set forth in Title 2 of the Code of Federal Regulations, Part 200, in connection with the Contractor's performance of the work or services covered by the Contract (the "Project"). All such federal laws and regulations shall be deemed to be inserted in the Contract and the Contract shall be read and enforced as though such federal laws and regulations were included therein. Anything to the contrary herein notwithstanding, all FEMA-mandated terms shall be deemed to control in the event of a conflict with other provisions contained in the Contract. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any City of Edmonds request that would cause the City to be in violation of these FEMA terms and conditions or any other federal law or regulation applicable to the receipt of FEMA grants. If any provision of the Contract shall be such as to effect noncompliance with any FEMA requirement, such provision shall not be deemed to form a part thereof, but the balance of the Contract shall remain in full force and effect. In addition, the Contractor agrees to the following specific provisions: 1.1 Debarment The Contractor and any prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. .2 The City will ensure the Contractor and any lower participants are not debarred by checking the government's Excluded Parties List System at SAM.gov prior to executing a contract. 1.2 Cost Plus Percentage Not Allowed Notwithstanding any provisions in the Contract to the contrary, the Contractor and any prospective lower tier participant are prohibited from using cost plus percentage contracts. This includes, but is not limited to, the use of percentages for change orders or mark-ups on sub -contractors or materials. Cost plus fixed fee, either lump sum or unit price, is authorized. Page 98 of 103 Packet Pg. 101 4.1.a 1.3Additional Federal Contracting Requirements The Contractor must comply with Executive Order 11246 of September 24, 1965, entitled Equal Employment Opportunity, as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). .2 The Contractor must comply with the requirements of the Age Discrimination Act of 1975 (42 U.S.C. § 6101 et seq.), which prohibits discrimination on the basis of age in any program or activity receiving Federal financial assistance. The Contractor must comply with the requirements of Titles I, 11, and III of the Americans with Disabilities Act, which prohibits recipients of federal funding from discriminating on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12101-12213). 4 The Contractor must comply with the requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), which provides that no person in the United States will, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Implementing regulations for the Act are found at 6 C.F.R. Part 21 and 44 C.F.R. Part 7. .5 The Contractor must comply with Title Vill of the Civil Rights Act of 1968, which prohibits Contractors from discriminating in the sale, rental, financing, and advertising of dwellings, or in the provision of services in connection therewith, on the basis of race, color, national origin, religion, disability, familial status, and sex (42 U.S.C. § 3601 et seq.), as implemented by the Department of Housing and Urban Development at 24 C.F.R. Part 100. The prohibition on disability discrimination includes the requirement that new multifamily housing with four or more dwelling units—i.e., the public and common use areas and individual apartment units (all units in buildings with elevators and ground -floor units in buildings without elevators) —be designed and constructed with certain accessible features (see 24 C.F.R. § 100.201). .6 The Contractor must comply with the Copeland Anti -Kickback Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). 7 The Contractor must comply with the Davis -Bacon Act (40 U.S.C. 276a to 276a7) as supplemented by Department of Labor regulations (29 CFR Part 5). a. This project is a public work in the State of Washington, funded in whole or in part with public funds. Therefore, the higher of the two applicable prevailing wage rates, federal or state, will be enforced. .8 The Contractor must comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327330) as supplemented by Department of Labor regulations (29 CFR Part 5). Page 99 of 103 Packet Pg. 102 4.1.a 9 The Contractor must provide reporting as specified in the plans, specifications and deliverables section of the Contract. 10 The City shall have patent rights with respect to any discovery or invention which arises or is developed in the course of or under such contract. I I The City shall have copyrights and rights respective to any data which arises or is developed in the course of or under such contract. 12 The County, State, the Federal grantor agency, the Comptroller General of the United States, or any of their duly authorized representatives shall have access to any books, documents, papers, and records of the Contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. 13 The Contractor must maintain records for three years after grantees or subgrantees make final payments and all other pending matters are closed. 14 The Contractor must comply with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000) .15 The Contractor must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. 16 The Contractor must comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94163, 89 Stat. 871). .17 The City is entitled to exercise all administrative, contractual, or other legal remedies permitted by law to enforce the Contractor's compliance with the terms of the Contract. .18 The Contractor must acknowledge its use of federal funding when issuing requests for proposals, bid invitations, and other documents describing the Project in connection with performing the Contract. Page 100 of 103 Packet Pg. 103 4.1.a 19 If the Contractor collects PH (Personally Identifiable Information) in connection with the Project, the Contractor is required to have a publicly available privacy policy that describes what PH they collect, how they use the PH, whether they share PH with third parties, and how individuals may have their PH corrected where appropriate. .20 The Contractor must comply with the Drug -Free Workplace Act of 1988 (41 U.S.C. § 701 et seq.), which is adopted at 2 C.F.R Part 3001, which requires that all organizations receiving grants from any Federal agency agree to maintain a drug -free workplace. .21 The Contractor must comply with the requirements of 31 U.S.C. § 3729 which sets forth that no recipient of federal payments shall submit a false claim for payment. See also 38 U.S.C. § 3801-3812 which details the administrative remedies for false claims and statements made. o U .22 The Contractor must comply with Preference for U.S. Flag Air Carriers: (air carriers L holding certificates under 49 U.S.C. § 41 102) for international air transportation of O people and property to the extent that such service is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974 (49 -a U.S.C. § 401 18) and the interpretative guidelines issued by the Comptroller General 3 of the United States in the March 31, 1981, amendment to Comptroller General Q Decision B-138942. .23 The Contractor must comply with the Title VI of the Civil Rights Act of 1964 (Title VI) prohibition against discrimination on the basis of national origin, which requires that recipients of federal financial assistance take reasonable steps to provide meaningful access to persons with limited English proficiency ("LEP") to their programs and services. Providing meaningful access for persons with LEP may entail providing language assistance services, including oral interpretation and written translation. .24 The Contractor must comply with 31 U.S.C. § 1352, which provides that none of the funds provided under an award may be expended by the Contractor to pay any person to influence, or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal action concerning the award or renewal. .25 Unless otherwise provided by law, the Contractor is subject to the Bayh-Dole Act, Pub. L. No. 96-517, as amended, and codified in 35 U.S.C. § 200 et seq. The Contractor is subject to the specific requirements governing the development, reporting, and disposition of rights to inventions and patents resulting from financial assistance awards are in 37 C.F.R. Part 401 and the standard patent rights clause in 37 C.F.R. § 401.14. .26 The Contractor must comply with U.S. Executive Order 13224 and U.S. law that prohibit transactions with, and the provisions of resources and support to, individuals and organizations associated with terrorism. Page 101 of 103 Packet Pg. 104 4.1.a .27 The Contractor must comply with the requirements of the government -wide award term which implements Section 106(g) of the Trafficking Victims Protection Act (TVPA) of 2000, as amended (22 U.S.C. § 7104). This is implemented in accordance with OMB Interim Final Guidance, Federal Register, Volume 72, No. 218, November 13, 2007. Full text of the award term is located at 2 CFR § 175.15. .28 The Contractor must comply with the Rehabilitation Act of 1973, including all sections, that prohibits discrimination on the basis of disability. The standards for deciding if employment discrimination exists under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act. .29 The Contractor must maintain the currency of the information in the Universal Identifier and System of Award Management (SAM) until submission of the final financial report required under the award or receive final payment, whichever is later, as required by 2 C.F.R. Part 25. 30 The Contractor must comply with requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which amends 18 U.S.C. §§ 175-175c. Among other things, the USA PATRIOT Act prescribes criminal penalties for possession of any biological agent, toxin, or delivery system of a type or in a quantity that is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose. .31 The Contractor must comply with the statutory requirements for whistleblower protections (if applicable) at 10 U.S.0 § 2409, 41 U.S.C. 4712, and 10 U.S.C. § 2324, 41 U.S.C. §§ 4304 and 4310. .32 The Contractor must obtain DHS's approval prior to using the DHS seal(s), logos, crests or reproductions of flags or likenesses of DHS agency officials, including use of the United States Coast Guard seal, logo, crests or reproductions of flags or likenesses of Coast Guard officials. 33 The Contractor must acknowledge and agree —and require any sub -contractors, successors, transferees, and assignees to acknowledge and agree —to comply with applicable provisions governing DHS access to records, accounts, documents, information, facilities, and staff. Additionally: a. the Contractor must cooperate with any compliance review or complaint investigation conducted by DHS; b. the Contractor must give DHS access to and the right to examine and copy records, accounts, and other documents and sources of information related to the grant and permit access to facilities, personnel, and other individuals and information as may be necessary, as required by DHS regulations and other applicable laws or program guidance; C. the Contractor must submit timely, complete, and accurate reports to the appropriate DHS officials and maintain appropriate backup documentation to support the reports; d. the Contractor must comply with all other special reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance; N U c 0 U as L O M 0 L 3 Q Page 102 of 103 Packet Pg. 105 4.1.a e. if, during the past three years, the Contractor has been accused of discrimination on the grounds of race, color, national origin (including limited English proficiency), sex, age, disability, religion, or familial status, the Contractor must provide a list of all such proceedings, pending or completed, including outcome and copies of settlement agreements to the DHS awarding office (FEMA) and the DHS Office of Civil Rights and Civil Liberties; and f. in the event any court or administrative agency makes a finding of discrimination on grounds of race, color, national origin (including limited English proficiency), sex, age, disability, religion, or familial status against the Contractor, or the Contractor settles a case or matter alleging such discrimination, the Contractor must forward a copy of the complaint and findings to the DHS Component and/or awarding office (FEMA). .34 Small and Minority Businesses: The non -Federal entity must take all necessary affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible. Affirmative steps must include: a. Placing qualified small and minority businesses and women's business enterprises on solicitation lists; b. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; C. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises; d. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; e. Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and f. Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (a) through (e) of this section. http://www.ecfr.gov/cgi- bin/text-idx?node=se2.1.200 1321 &rgn=div8 The United States has the right to seek judicial enforcement of these obligations. Page 103 of 103 Packet Pg. 106 4.1.b CITY OF EDMONDS, WASHINGTON JOB ORDER CONTRACT THIS JOB ORDER CONTRACT (hereinafter "the Contract") is entered into by and between the City of Edmonds (hereinafter "the City") and Centennial Contractors Enterprises Inc. (hereinafter "the Contractor"). The City and the Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows: SECTION 1— WORK The Contractor shall complete all Work as specified or indicated in the Contract Documents The Work is generally described as follows: The Work of this Contract will be set forth in each Detailed Scope of Work referenced in the individual Job Orders. The Contractor is required to complete each Detailed Scope of Work for the Job Order Price within the Job Order Completion Time. The value of the Job Order Price Proposal shall be calculated by summing the total of the calculation for each Pre -priced Task (Unit Price x quantity x Adjustment Factor) plus the value of all Non-Prepriced Tasks. SECTION 2 — CITY REPRESENTATIVES 2.1 Project Manager: The City will appoint a Project Manager for each Job Order, who shall be the City's representative, assume all duties and responsibilities and have the rights and authority assigned to the Project Manager in the Contract Documents in connection with completion of the Work in accordance with the Job Order and the Contract Documents. 2.2 Contract Administrator: The JOC Contract Administrator is designated by the City to manage the Job Order Contracting program for the City. The Contract Administrator will oversee the execution of the program on behalf of the City and will provide overall guidance to the Project Managers and Contractor(s) in the execution of Job Orders. The Contract Administrator shall intervene in disputes or disagreements between the Project Manager and the Contractor. The Contract Administrator also may exercise any authority granted to Project Managers under the Contract Documents with respect to any Job Order at any time. SECTION 3 — CONTRACT TIME 3.1 The Base Term of the Contract is two (2) years. 3.2 There is one (1) bilateral Option Term. Both parties must agree to extend the Contract for the Option Term. The duration of the Option Term is one year. 3.3 The City and the Contractor may agree to extend the Option Term. Page 1 of 103 Packet Pg. 107 4.1.b 3.4 All Job Orders issued during the term of this Contract shall be valid and in effect notwithstanding that the Detailed Scope of Work may be performed, payments may be made, and/or the guarantee period may continue after the Contract term has expired. All terms and conditions of the Contract apply to each Job Order. 3.5 The Contractor shall commence work upon issuance of a Job Order and shall complete the Detailed Scope of Work for the Job Order Price within the Job Order Completion Time. SECTION 4 — CONTRACT PRICE 4.1 The City shall pay the Contractor for completion of each Detailed Scope of Work in accordance with the Contract Documents. 4.2 The Contract is an indefinite -quantity contract for general construction work and services. The Minimum Contract Value of Job Orders that the Contractor is guaranteed the opportunity to perform under this Contract is Twenty -Five Thousand Dollars ($25,000). The Estimated Annual Value is two Million Dollars ($2,000,000) for the City's Job Order Contracting Program. The City reserves the right to issue up to the maximum amount specified in RCW 39.10.40 of Four Million Dollars ($4,000,000) per year or such greater amount that may be authorized by statute. The Maximum Contract Value shall not exceed the value set forth in the RCW. 4.3 The Contractor is not guaranteed to receive the Estimated Annual Value. It is merely an estimate. Owner has no obligation to give the Contractor the opportunity to perform Job Orders in excess of the Minimum Contract Value. 4.4 The Contractor shall perform all work required, necessary, proper for or incidental to completing the Detailed Scope of Work called for in each individual Job Order issued pursuant to this Contract for the Unit Prices set forth in the Construction Task Catalog° and the following Adjustment Factors: Normal Working Hours Adjustment Factor (General Facilities) 7:00 am to 4:00 pm Monday through Friday, except for City Holidays: 1.3600. Other Than Normal Working Hours Adjustment Factor (General Facilities) 4:01 pm to 6:59 am Monday through Friday, and all -day Saturday, Sunday and City Holidays: 1.4008. Normal Working Hours Adjustment Factor (Secured Facilities) 7:00 am to 4:00 pm Monday through Friday, except for City Holidays: 1.4076. Other Than Normal Working Hours Adjustment Factor (Secured Facilities) 4:01 pm to 6:59 am Monday through Friday, and all -day Saturday, Sunday and City Holidays: 1.4498. Non-Prepriced Adjustment Factor: 1.2500. Page 2 of 103 Packet Pg. 108 4.1.b SECTION 5 — PAYMENT PROCEDURES The Contractor shall submit Applications for Payment in accordance with Article 12 the General Conditions. Applications for Payment will be processed by the Contract Administrator with approval by the Project Manager as provided in the General Conditions. 5.1 Progress Payments. The City shall make progress payments on account of the Job Order Price on the basis of the Contractor's Invoices as recommended by Project Manager and Contract Administrator in accordance with the General Conditions. All progress payments will be on the basis of the progress of the Work as established in the General Conditions (and in the case of Unit Price Work based on the number of units completed). 5.2.1 Final Payment. Upon final completion and acceptance of the work in accordance with the General Conditions, City shall pay the remainder of the Job Order Price as recommended by Project Manager and Contract Administrator. A Certificate of Completion signed by the Project Manager is required prior to payment of any final invoice(s). 5.2.2 Schedule. As determined by the Project Manager, progress payments shall be made per the Project Payment Schedule. 5.2.3 Separate Contract. Per RCW 39.10.450, for purposes of chapters 39.08, 39.12, 39.76, and 60.28 RCW, each Job Order issued shall be treated as a separate contract. The Contractor will provide the bonds as set forth in the RFP and in the General Conditions on the forms provided by the City. SECTION 6 — INDEMNIFICATION The indemnity and defense obligations in this Section 6 are in addition to any other indemnity and defense obligation elsewhere in the Contract Documents. A. The Contractor will defend and indemnify the City from any and all Claims arising out of, in connection with, or incident to any acts, errors, omissions, or conduct by the Contractor relating to, or arising out of its performance of, this Contract. The Contractor will defend and indemnify the City whether a Claim is asserted directly against the City, or whether a Claim is asserted indirectly against the City, e.g., a Claim is asserted against someone else who then seeks contribution or indemnity from the City. The amount of insurance obtained by, obtainable by, or required of the Contractor does not in any way limit the Contractor's duty to defend and indemnify the City. The City retains the right to approve Claims investigation and counsel assigned to said Claim and all investigation and legal work regarding said Claim shall be performed under a fiduciary relationship to the City. B. The Contractor's obligations under this Section shall not apply to Claims caused by the sole negligence of the City. If: (1) RCW 4.24.115 applies to a particular Claim; and (2) such Claim is caused by or results from the concurrent negligence of: (a) the Contractor, its employees, subcontractors/subconsultants or agents; and (b) the City, then the Contractor's obligations under this Section 6 shall apply only to the extent allowed by RCW 4.24.115. L Y 0 U a� L 0 0 L 3 Q Page 3 of 103 Packet Pg. 109 4.1.b C. As used in this section: (1) "City" includes the City's officers, employees, agents, and representatives; (2) "Claims" include all losses, claims, demands, expenses (including, but not limited to, attorney's fees and litigation expenses), suits, judgments, or damage, whether threatened, asserted or filed against the City, whether such Claims sound in tort, contract, or any other legal theory, whether such Claims have been reduced to judgment or arbitration award, irrespective of the type of relief sought or demanded (such as money or injunctive relief), and irrespective of the type of damage alleged (such as bodily injury, damage to property, economic loss, general damages, special damages, or punitive damages); and (3) "Contractor" includes the Contractor, its employees, agents, representatives and subcontractors. D. The Contractor waives any right of contribution against the City. It is agreed and mutually negotiated that in any and all claims against the City, its agents or employees, the Contractor, a subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor, or anyone for whose acts any of them may be liable, the defense and indemnification obligations hereunder shall not be limited in any way by any limitation on the amount of damages, compensation, or benefits payable by or for the Contractor or any subcontractor under industrial worker's compensation acts, disability benefit acts, or other employees' benefit acts. The Contractor's and City's signatures hereto indicate specific waiver of the Contractor's industrial insurance immunity in order to fulfill this indemnity. Solely for the purpose of indemnification and defense as provided in this Contract, the Contractor specifically waives any immunity under the State Industrial Insurance Law, Title 51 RCW. The Contractor expressly acknowledges that this waiver of immunity under Title 51 RCW was the subject of mutual negotiation and was specifically entered into pursuant to the provisions of RCW 4.24.115. SECTION 7 — CONTRACTOR'S REPRESENTATIONS The Contractor makes the following representations: 7.1 The Contractor has familiarized itself with the nature and extent of the Contract Documents, Work, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work. 7.2 The Contractor is fully qualified to perform the Work to be performed hereunder in a competent and professional manner. 7.3 The Contractor has given the Project Manager written notice of all conflicts, errors or discrepancies that it has discovered in the Contract Documents and the written resolution thereof by the Project Manager is acceptable to the Contractor. SECTION 8 — CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between the City and the Contractor concerning the Work consist of the following: 8.1 This Contract and its exhibits, if any. In a Federally Funded Job Order (as defined in the General Conditions) this Contract includes the applicable current Federal Contract Clauses, which the City will specifically designate in the Job Order. These Federal Contract Clauses are only applicable to that specific Federally Funded Job Order and have no force or effect with respect to any other Job Order. A Federally Funded Job Order may also include one - Page 4 of 103 Packet Pg. 110 4.1.b time changes to the Contract Documents specifically for that Job Order signed for the City by the Contract Administrator as necessary to coordinate the requirements of the applicable Federal Contract Clauses with the requirements of the Contract Documents. 8.2 General Conditions, attached hereto and incorporated by reference. 8.3 Supplementary Conditions, attached hereto and incorporated by reference. 8.4 The RFP and all addenda, incorporated by reference. 8.5 Contractor's Proposal, incorporated by reference. If there is inconsistency between any provision of the Contractor's Proposal and any other Contract Document, then the provision imposing the more stringent requirement on the Contractor will control. 8.6 The Construction Task Catalog® and Technical Specifications, incorporated by reference 8.7 All Job Orders and related documents, including but not limited to, the Detailed Scope of Work with Drawings and/or Specifications, Request for Proposal, Price Proposal, Job Order Proposal, Notice to Proceed, submittals, record documents, and all required close-out documentation and warranties, incorporated by reference. If there is inconsistency between any provision of the documents listed in this Section 8.7 and any other Contract Document, then the provision imposing the more stringent requirement on the Contractor will control. There are no Contract Documents other than those listed above in this Section 8. The Contract Documents may only be amended, modified or supplemented as provided in the General Conditions or Supplementary Conditions. All Contract Documents are essential parts of the Contract, and a requirement occurring in one is as binding as though occurring in all. In cases of conflict in the requirements and provisions as set out by the Contract Documents, the specifications, or the drawings, such conflict shall be reconciled by the order of precedence in the order the Contract Documents are set forth above. Additionally, in the event of conflicting provisions within the Job Order Contract, the following order of precedence with item (a) representing the highest precedence for resolution of the conflict shall apply: a) Contract Modifications (later takes precedence over earlier) b) Job Order Contract c) Addenda (later takes precedence over earlier) d) Job Orders (including Detailed Scopes of Work, Job Order Proposals, and any Supplemental Job Orders) e) Request for Proposals f) General Terms and Conditions g) Special and Supplementary Conditions (when provided) h) The Construction Task Catalog© i) Gordian Technical Specifications Any modification of any Contract Document listed in sections 8.1 to 8.6 above requires an amendment executed by an authorized representative of the City and by an authorized representative of the Contractor. Changes to Contract Documents listed under Section 8.7 may be Page 5 of 103 Packet Pg. 111 4.1.b executed by an authorized representative of the Contractor and by the Project Manager or the Contract Administrator for the City. SECTION 9 — PREVAILING WAGES Contractor shall comply with all state and federal laws relating to the employment of labor and wage rates to be paid. The Contractor will be required to file prevailing wage intents and affidavits with the Washington State Department of Labor & Industries for each Job Order. A Federally - Funded Job Order may specify the Davis -Bacon Act and Copeland Anti -Kickback Act, in which case the Contractor shall comply with these requirements. The Contractor will pay Washington state prevailing wages or Davis -Bacon wages, whichever is higher. SECTION 10 — MISCELLANEOUS 10.1 Terms used in this Contract which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 10.2 No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.3 City and Contractor each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. 10.4 This Contract is governed by the laws of the State of Washington, without regard to the principles of conflict of laws. Any action or suit brought in connection with this Contract shall be exclusively brought in the Superior Court of King County, Washington. 10.5 Force Majeure: Neither party shall be liable to the other or deemed in breach or default for any failure or delay in performance under this Contract during the time and to the extent its performance is prevented by reasons of Force Majeure. For the purposes of this Contract, Force Majeure means an occurrence that is beyond the reasonable control of and without fault or negligence of the party claiming force majeure and which, by exercise of due diligence of such party, could not have been prevented or overcome. Force Majeure shall include natural disasters, including fire, flood, earthquake, windstorm, avalanche, mudslide, and other similar events; acts of war or civil unrest when an emergency has been declared by appropriate governmental officials; acts of civil or military authority; freight embargoes; epidemics; quarantine restrictions; labor strikes; boycotts; terrorist acts; riots; insurrections; explosions; and nuclear accidents. A party claiming suspension or termination of its obligations due to force majeure shall give the other party prompt written notice, but no more than two (2) working days after the event, of the impediment and its effect on the ability to perform; failure to provide such notice shall preclude recovery under this provision. Page 6 of 103 Packet Pg. 112 4.1.b 10.6 Nondiscrimination: In hiring or employment made possible or resulting from this Contract, there shall be no unlawful discrimination against any employee or applicant for employment because of sex, age (except minimum age and retirement provisions), race, color, creed, national origin, citizenship or immigration status (except if authorized by federal or state law, regulation, or government contract), marital status, sexual orientation, honorably discharged veteran or military status, the presence of any sensory, mental, or physical handicap or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification. This requirement shall apply to but not be limited to the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt or the benefit of any services or activities made possible by or resulting from this Contract on the grounds of sex, race, color, creed, national origin, age (except minimum age and retirement provisions), citizenship or immigration status (except if authorized by federal or state law, regulation, or government contract), marital status, sexual orientation, honorably discharged veteran or military status, the presence of any sensory, mental or physical handicap, or the use of a trained dog guide or service animal by a person with a disability. 10.7 Integration: The agreement between the parties shall consist of this Contract, its attached Appendices 1 & 2 and General and Supplementary Conditions, and all other Contract Documents referenced in Section 8, above. These writings constitute the entire agreement of the parties and shall not be amended except by a writing executed by both parties. In the event of any conflict between this written Contract and any provision in the Contract Documents, the order of precedence shall apply. 10.8 This Contract, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by the Contractor to any other person or entity without the prior written consent of the City, which consent will not be unreasonably withheld. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of the Contractor as stated herein. 10.9 Counterpart Originals: This Contract maybe executed in any number of counterpart originals, each of which shall be deemed to constitute an original Contract, and all of which shall constitute one Contract. The execution of one counterpart by a Party shall have the same force and effect as if that Party had signed all other counterparts. Page 7 of 103 Packet Pg. 113 4.1.b IN WITNESS WHEREOF, the City and the Contractor have signed this Contract. This Contract is effective as of the date of the last person to sign it, and may be executed in multiple counterparts, each of which shall be deemed an original. CITY OF EDMONDS, WASHINGTON Mike Nelson, Mayor ATTEST/AUTHENTICATED: Scott Passey, City Clerk Date: APPROVED AS TO FORM: Office of the City Attorney CONTRACTOR Geoff Preisman, President and CEO, Centennial Contractors Enterprises Inc. Date: Page 8 of 103 Packet Pg. 114 4.1.b JOB ORDER CONTRACT APPENDIX 1 (Appendix A of USDOT 1050.2A Standard Title VI Assurances) During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter collectively referred to as the "Contractor") agrees as follows: 1. Compliance with Regulations: The Contractor shall comply with the acts and regulations relative to nondiscrimination in federally -assisted programs of the United States Department of Transportation (USDOT), Title 49, Code of Federal Regulations, Part 21 (49 CFR 21), as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Agreement. 2. Nondiscrimination: The Contractor, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Contractor shall not participate directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers any activity, project, or program set forth in Appendix B of 49 CFR 21. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, request for proposal, or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials, or leases of equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. 4. Information and Reports: The Contractor shall provide all information and reports required by the Regulations and directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the appropriate state or federal agency to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor shall so certify to the City, or state or federal agency, as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such contract sanctions as it or the appropriate state or federal agency may determine to be appropriate, including, but not limited to: • Withholding of payments to the Contractor under the Agreement until the Contractor complies; and/or • Cancellation, termination, or suspension of the Agreement, in whole or in part. 6. Incorporation of Provisions: The Contractor shall include the provisions of the above paragraphs one (1) through five (5) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Contractor shall take such action with respect to any subcontractor or procurement as the City or appropriate state or federal agency may direct as a means of enforcing such provisions, including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with, litigation by a subcontractor or supplier as a result of such direction, the Contractor may request that the City enter into such litigation to protect the interests of the City; or may request that the appropriate state agency enter into such litigation to protect the interests of the State of Washington. In addition, the Contractor may request the appropriate federal agency enter into such litigation to protect the interests of the United States. Page 9 of 103 Packet Pg. 115 4.1.b JOB ORDER CONTRACT APPENDIX 2 (Appendix E of USDOT 1050.2A Standard Title VI Assurances) During the performance of this contract, the Contractor, for itself, its assignees, and successors in the interest (hereinafter referred to as the "Contractor") agrees to comply with the following non- discrimination statutes and authorities; including but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration's Non -Discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898 , Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Person with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure the LEP person have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). Page 10 of 103 Packet Pg. 116 4.1.b GENERAL CONDITIONS ARTICLE 1 DEFINITIONS .................. 1.1 Definition of Terms 1.1.1 JOC Specific Definition of Terms 1.2 Definitions/Abbreviations ARTICLE 2 PRELIMINARY MATTERS............ 2.1 City Operations 2.2 Starting the Job Order (Notice to Proceed) 2.3 Job Order Completion Time 2.4 Extension of Time 2.5 Before Starting Work 2.6 Preconstruction Conference 14 26 ARTICLE 3 CONTRACT DOCUMENTS: INTENT, CORRELATION, EXECUTION OF AND OWNERSHIP OF CONTRACTDOCUMENTS.........................................................................................................................29 3.1 Intent 3.2 Correlation of the Contract Documents 3.3 No Warranties by the City ARTICLE 4 PHYSICAL CONDITIONS AND REFERENCE POINTS....................................................31 4.1 Unforeseen Physical Conditions ARTICLE 5 BONDS AND INSURANCE...............................................................................................32 5.1 Performance Bond 5.2 Payment Bond 5.3 Contractor's Liability Insurance 5.4 Contractor Pollution Liability 5.5 Waiver of Rights 5.6 Receipt and Application of Property Insurance Proceeds ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES..............................................................................43 6.1 Examination of the Site of Work and Detailed Scope of Work 6.2 Error, Inconsistency, Omission or Variance in the Contract Documents 6.3 Supervision 6.4 Labor, Materials, and Equipment 6.5 Equivalent Materials and Equipment, "or Equal" 6.6 Disposal of Demolished Materials 6.7 Subcontractors and Sub -Subcontractors 6.8 Patent Fees and Royalties 6.9 Laws and Regulations 6.10 Taxes 6.11 Use of Premises 6.12 Record Documents 6.13 Safety and Protection 6.14 Emergencies 6.15 Shop Drawings and Samples 6.16 Continuing the Work 6.17 Warranties 6.19 Progress Schedule 6.20 On -Site Documents 6.21 Working Drawings, Product Data, Samples, and Other Submittals 6.22 Cutting, Fitting and Patching of Work Page 11 of 103 Packet Pg. 117 4.1.b 6.23 Inspection of the Work 6.24 Uncovering of Work 6.25 Correction of Work 6.26 Responsibility for Work 6.27 Hazardous Materials 6.28 Clean-up 6.29 Protection of Work During Suspension 6.30 Notice and Detailed Breakdown of Claim 6.32 Prerequisite to Suit 6.33 Indemnification ARTICLE 7 ADDITIONAL WORK AND WORK BY OTHERS............................................................. 61 7.1 Additional Work U L ARTICLE 8 CITY'S RESPONSIBILITIES............................................................................................. 62 L)) 8.1 Authority of the Project Manager 8.2 Administration of the Contract 8.3 City's Right to Carry Out Other Work 0 8.4 Officers and Employees of the City Have No Personal Liability c 8.5 Gratuities 8.6 Service of Notices on the Contractor 3 a ARTICLE 9 PROJECT MANAGER'S STATUS DURING WORK ........................................................ 64 9.1 City's Representative 9.2 Clarifications and Interpretations 9.3 Rejecting Defective Work 9.5 Decisions on Disagreements 9.6 Limitations on Project Manager's Responsibilities 9.8 Requests for Instruction ARTICLE 10 CHANGES IN THE WORK.................................................................................................67 10.1 Changes to Contract Documents 10.2 Change Order and Supplemental Job Order 10.3 Job Order Price 10.4 Job Order Completion Time ARTICLE 11 WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK.....................................................................................................70 11.1 Warranty and Guarantee 11.2 Access to Work 11.3 Tests and Inspections 11.4 City May Stop the Work 11.5 Correction or Removal of Defective Work 11.6 Acceptance of Defective Work 11.7 City May Correct Defective Work ARTICLE 12 PAYMENTS TO CONTRACTOR AND COMPLETION.. 12.1 Application for Progress Payment 12.2 Contractor's Warranty of Title 12.3 Review of Applications for Progress Payment 12.4 Substantial Completion 12.5 Partial Utilization 12.6 Final Inspection ................................................ 73 Page 12 of 103 Packet Pg. 118 4.1.b 12.7 Final Application for Payment 12.8 Final Payment and Acceptance 12.9 Contractor's Continuing Obligation 12.10 Waiver of Claims ARTICLE 13 SUSPENSION OF WORK AND TERMINATION.............................................................. 77 13.1 Suspend the Work 13.2 City May Terminate 13.3 Termination for Convenience 13.4 Minimum Contract Value Not Achieved 13.5 Contractor may Stop Work or Terminate ARTICLE15 MISCELLANEOUS..................................................................................................................80 15.1 General Requirements 15.2 Giving Notice 15.3 Computation of Time 15.4 Non -Discrimination 15.5 Contractor Selection 15.6 Contractor's Personnel ARTICLE 16 JOC PROCEDURE FOR ORDERING WORK.................................................................. 82 16.1 Initiation of a Job Order. 16.2 Preparation of the Price Proposal 16.3 Review of the Job Order Proposal and Issuance of the Job Order ARTICLE 17 ENR CCI ADJUSTMENT OF THE ADJUSTMENT FACTORS ......................................... 89 ARTICLE 18 SOFTWARE, JOC SYSTEM LICENSE, AND COOPERATIVE PURCHASING ............... 91 18.1 JOC System License 18.2 Cooperative Purchasing ARTICLE 19 COMPLIANCE WITH THE JOC RCW REQUIREMENTS ...... 19.1 Contractor's Responsibility 19.2 Maximum Job Order Value 19.3 Adjustment Factors and Construction Task Catalog® 19.4 Prevailing Wage Rates to be Paid 19.5 Executed OMWBE Plan 19.6 Subcontracting 19.7 Public Records 19.8 Audits and Retention of Records 19.9 Public Notice Requirements 19.10 Public Inspection of Certain Records -Protection of Trade Secrets ..................................... 92 3 a Page 13 of 103 Packet Pg. 119 4.1.b ARTICLE 1 DEFINITIONS 1.1 Definition of Terms: Wherever used in these General Conditions or in the other Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof. Acceptance The official act of the City, Contract Administrator, or Project Manager as described in Article 12. Addenda Written or graphic instruments issued prior to the submittal of Contractor Proposals which clarify, correct or change the Proposal documents or the Contract Documents Contract (or Job The written agreement between the City and the Contractor Order Contract) The form accepted by Project Manager which is to be used by Application for Contractor in requesting progress or final payment and which is Payment to include such supporting documentation as is required by the Contract Documents. Bonds Performance and payment bonds and other instruments of security. Contract The authorized representative of the City who is assigned Administrator immediate charge of the administration of the Job Order Contract. Contract Documents All of the documents constituting the Contract. Contractor The individual, firm, partnership, corporation or combination thereof with whom City has entered into the Contract. City The City of Edmonds. Depending on the context, the term City may also include all of the City's elected officials, officers, employees and other authorized representatives c 0 U a� L 0 0 3 a Page 14 of 103 Packet Pg. 120 4.1.b Day Unless otherwise designated in the Contract Documents, a calendar day of twenty-four (24) hours measured from midnight to the next midnight. Defective An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents or does not meet the requirements of any inspection, test or approval referred to in the Contract Documents, or has been damaged prior to Project Manager's recommendation of final payment. Drawinas The drawings which show the character and scope of the Work to be performed and which have been prepared or approved by Project Manager assigned to the Job order and which are referred to in the Detailed Scope of Work. Effective Date of the The date indicated in the Contract on which it becomes Contract effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver. Federally Funded A Job Order designated by the City as federally funded, in Job Order which case the Job Order includes the Federal Contract Clauses. Federal Contract The current federal contract clauses determined by the City to Clauses be applicable to a Federally Funded Job Order. Page 15 of 103 Packet Pg. 121 4.1.b Field Order A written order issued by Project Manager which orders minor changes in the Work in accordance with section 10.1.5, but which does not involve a change in the Price or the Completion Time. Final Completion Occurs when all requirements have been completed as stated in section 2.3 and Article 12. Final Payment The payment to be made to the Contractor in accordance with Article 12. Hazardous Materials The term "Hazardous Materials" means any hazardous or toxic substances, materials and wastes listed in the United States Department of Transportation Hazardous Materials Table 49 CFR 172.101 or listed by the Environmental Protection Agency as hazardous substances in 40 CFR Part 302 and any amendments thereto, and any substances, materials or wastes that are or become regulated under federal, state or local law. Hazardous Materials or substances shall also include, but not be limited to: regulated substances, petroleum products, pollutants, and any and all other environmental contamination as defined by, and in any and all federal. State and/or local laws, rules, regulations, ordinances or statutes now existing or hereinafter enacted relating to air, soil, water, environmental or health and safety conditions. Inspector The City's authorized representative assigned to make inspections of the Contractor's performance of the Work. Liquidated Damages The amount prescribed herein to be paid to the City, or to be deducted from any payments due or to become due the Contractor, for each day's delay in completing the whole or any specified portion of the work beyond the time allowed in the Job Order. At the sole discretion of the City, liquidated damages will be assessed, if at all, on a Job Order -by -Job Order basis. For each calendar day that the Detailed Scope of Work for a Job Order shall remain incomplete after the Job Order Completion Time, the amount per calendar day specified in following table, Schedule of Liquidated Damages, will be deducted from any money due the Contractor, not as a penalty but as liquidated damages; provided however that due account shall be taken of any adjustment of the Job Order Completion Time as provided for elsewhere in this Contract. Page 16 of 103 Packet Pg. 122 4.1.b Value of Job Order Liquidated Damages $0 to $10,000 $100/Day $10,001 to $50,000 $250/Day Over $50,000 $500/Day Notice of Intent to The written notice by City identifying the highest ranked Award Proposers and indicating that the City intends to award a contract to that Proposer(s) or enter into negotiations with such Proposer(s). Page 17 of 103 Packet Pg. 123 4.1.b Notice to Proceed A written notice given by City to Contractor fixing the date on Which the start of Work will commence and on which Contractor shall start to perform its obligation within the completion time under the Contract Documents. Payment Bond The form of security approved by the City, furnished by the Contractor and its surety guaranteeing the complete and faithful payment of all labor, material, equipment, and any other services provided to the Work. Performance Bond The form of security approved by the City, furnished by the Contractor and its surety guaranteeing the complete and faithful performance of the construction of the Work as specified in the Contract Documents. Plans The concept or mental formulation for the Work. The plans may be represented graphically by drawings, by the written words within the Contract Documents, or both. City Furnished Materials or equipment furnished by the City which is to be Materials or incorporated into the Work by the Contractor. Equipment Page 18 of 103 Packet Pg. 124 4.1.b Product Data The illustrations, standard schedules, performance charts, brochures, diagrams, and other information furnished by the Contractor to illustrate a material, product, or system. Project The collective improvements to be constructed by the Contractor pursuant to issuance of a Job order. A Project will consist of one Job order and any Supplemental Job Orders issued. Project Manager The authorized representative of the City who is assigned immediate charge of the work of the project. Pr000sal The offer or proposal of the Contractor submitted in response to the City's Request For Proposal for the selection of Contractor(s). Usually referred to as the Contractor's Proposal Pr000ser Any individual, firm, partnership, corporation or combination thereof formally submitting a proposal for the work contemplated, or any portion thereof, acting directly or through an authorized representative. Provide The all-inclusive actions required to furnish, install, connect, adjust, test, and make ready for use or occupancy. Punch List Shall have the meanina set forth in Article 12. RFP The Request for Proposal issued by the City for the selection of the Contractor(s). Samples Physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. Schedule of Prices Means the Unit Prices set forth in the Contract Documents. Shop Drawings All drawings, diagrams, illustrations, brochures, standard schedules, performance charts, instructions, and other data which are specifically prepared by Contractor, a Subcontractor, manufacturer, fabricator, supplier or distributor to illustrate some portion of the Work, material or equipment. Specifications Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, performance requirements and workmanship as applied to the Work and certain administrative details applicable thereto. Page 19 of 103 Packet Pg. 125 4.1.b Subcontractor An individual, firm, or corporation having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the site. Sub -Subcontractor A Sub -Subcontractor is a business entity that has an agreement with a Subcontractor to perform a portion of the Work. The term Sub -Subcontractor means and includes the Sub -Subcontractor at all tiers. Substantial The Work or a specified part thereof has progressed to the Completion point where, in the opinion of Project Manager as evidenced by his/her certificate of Substantial Completion, the Detailed Scope of Work is sufficiently complete, in accordance with the Contract Documents, so that the Work or specified part can be utilized for the purposes for which it was intended; or if there be no such certificate issued, when final payment is due in accordance with section 12.4. The terms "substantially complete" and "substantially completed" as applied to any Work refer to Substantial Completion. Supplementary That portion of the Contract Documents that amends or Conditions supplements these General Conditions. Supplier A vendor, supplier, distributor, or materialman other than the Prime Contractor, which supplies material or equipment used in the performance of the Work. Page 20 of 103 Packet Pg. 126 4.1.b Suretv The company or association which is bound with and for the Contractor for the acceptable performance of the Contract and for its payment of all obligations arising out of the Contract Titles or Headings The titles or headings of the sections, divisions, parts, articles, paragraphs, or subparagraphs of the specifications are intended only for convenience of reference and shall not be considered as having any bearing on the interpretation of the text. Unit Prices The price published in the Construction Task Catalog° for a specific construction or construction related work task. Unit Prices for new Pre -priced Tasks can be established during the course of the Contract and added to the Construction Task Catalogs°. Each Unit Price is comprised of labor, equipment, and material costs to accomplish that specific Pre -priced Task Work The entire completed project or the various separately identifiable parts required to be furnished in accordance with the Contract Documents. Work is the result of performing services, furnishing labor, and furnishing and incorporating materials and equipment into the project, all as required by the Contract Documents. 1.1.1 Job Order Contracting Specific Definition of Terms: Adjustment Factor A competitively bid adjustment to be applied to the unit prices listed in the Construction Task Catalog°. Also known as a "coefficient." Base Term The initial period of the Contract and does not include any Option Terms. Construction Task Catalog° A comprehensive listing of construction related tasks together with a specific unit of measure and a published Unit Price. Detailed Scope of Work A document setting forth the work the Contractor is obligated to complete for a particular Job Order. Estimated Annual Value An estimate of the value of Job Orders that could be issued to the Contractor each year. Job Order A written order issued by the City, such as a Purchase Order, requiring the Contractor to complete the Detailed Scope of Work Page 21 of 103 Packet Pg. 127 4.1.b within the Job Order Completion Time for the Order Price. A project may consist of one or more Job Orders with one or more Supplemental Job Orders. [Job Order] CompletionTime The time within which the Contractor must complete the Detailed Scope of Work. [Job Order] Price The value of the approved Job Order Price Proposal and the amount the Contractor will be paid for completing a Job Order. [Job Orderl Price Proposal A price proposal prepared by the Contractor that U includes the Pre -priced Tasks, Non-Prepriced Tasks, quantities and appropriate Adjustment Factors required G U to complete the Detailed Scope of Work. Job Order Proposal A set of documents including at least: (a) Job Order o Price Proposal; (b) required drawings or sketches; (c) c list of anticipated Subcontractors and Materialmen; (d) Construction schedule; and 3 (e) other requested documents. a Joint Scope Meeting A site meeting to discuss the work before the Detailed o Scope of Work is finalized. i Minimum Contract Value The minimum value of Job orders that the Contractor is 0 guaranteed the opportunity to perform under this , Contract. Non-Prepriced Task A task that is not set forth in the Construction Task Catalog®. L) Normal Working Hours (General Facilities) Includes the hours from 7:00 a.m. to 4:00 p.m. Monday c E through Friday, except for City Holidays in Facilities classified as a General by the City of Edmonds. Normal Working Hours (Secured Facilities) Includes the hours from 7:00 a.m. to 4:00 p.m. Monday a through Friday, except for City Holidays in Facilities classified as Secured by the City of Edmonds. Notice to Proceed A written notice issued by the City directing the Contractor to proceed with construction activities to complete the Job Order. Option Term An additional period of time beyond the Contract Term which extends the termination date of the Contract. Page 22 of 103 Packet Pg. 128 4.1.b Other than Normal Working Hours (General Facilities) Includes the hours of 4:01 p.m. to 6:59 a.m., Monday to Friday and all day Saturday, Sunday, and City Holidays in Facilities classified as General by the City of Edmonds. Other than Normal Working Hours (Secured Facilities) Includes the hours of 4:01 p.m. to 6:59 a.m., Monday to Friday and all day Saturday, Sunday, and City Holidays in Facilities classified as Secured by the City of Edmonds. Proposal Criteria Figure The amount determined in the Proposal Criteria Figure Calculation section of the Price Proposal, which is used for the purposes of determining the lowest price. Pre -priced Task A task described in and for which a unit price is set forth in the Construction Task Catalog®. Request for Proposal A written request to the Contractor to prepare a Proposal for the Detailed Scope of Work referenced therein. Supplemental Job Order A secondary Job Order developed after the initial Job Order has been issued for the purpose of changing, deleting, or adding work to the initial Detailed Scope of Work, or changing the Job Order Completion Time. Technical Specifications The written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. Unit Price The price published in the Construction Task Catalog® for a specific construction or construction related work task. Unit Prices for new Pre -priced Tasks can be established during the course of the Contract and added to the Construction Task Catalogs®. Each Unit Price is comprised of labor, equipment, and material costs to accomplish that specific Pre -priced Task. Work All materials, labor and use of tools, equipment, and services necessary by the Contractor and/or Subcontractor to complete the Job Order. U L c 0 U L 0 0 L 3 g Page 23 of 103 Packet Pg. 129 4.1.b 1.2 Definitions/Abbreviations AAR Association of American Railroads ACI American Concrete Institute AISC American Institute of Steel Construction ANSI American National Standards Institute APA American Plywood Association API American Petroleum Institute ARA American Railway Association AREA American Railway Engineering Association ASCE American Society of Civil Engineers ASHRAE American Society of Heating, Refrigeration and Air Conditioning Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials AWS American Welding Society COS City of Edmonds CPM Critical Path Method of Project Scheduling CRSI Concrete Reinforcing Steel Institute FAA Federal Aviation Administration FHWA Federal Highway Administration FM Factory Mutual FS Federal Specification FTA Federal Transit Administration IEEE Institute of Electrical and Electronics Engineers ISO Insurance Service Office JIC Joint Industrial Council NAAMM National Association of Architectural Metal Manufacturers NBFU National Board of Fire Underwriters NEC National Electrical Code NEMA National Electrical Manufacturer's Association NESC National Electrical Safety Code NIOSH National Institute of Occupational Safety and Health NFPA National Fire Protection Association OFCCP Office of Federal Contract Compliance Programs OSHA Occupational Safety and Health Act L c 0 U a� L 0 0 L 3 Q Page 24 of 103 Packet Pg. 130 4.1.b PCA Portland Cement Association PSCAAPCA Puget Sound Clean Air Pollution Control Agency SAE Society of Automotive Engineers SMACNA Sheet Metal and Air Conditioning Contractors National Association SSPC Steel Structures Painting Council SWI Steel Window Institute UFC Uniform Fire Code UL Underwriter's Laboratory U L WISHA Washington Industrial Safety & Health Act Administration c U L L END ARTICLE 1 0 L 3 a Page 25 of 103 Packet Pg. 131 4.1.b ARTICLE 2 PRELIMINARY MATTERS 2.1 City Operations The City is an operating facility which will continue in full operation throughout the term of this Contract. Where facility operations conflict with those of the Contractor, the operations of the facility will take precedence over those of the Contractor. It shall be the sole responsibility of the Contractor to schedule and coordinate its activities with those of the facility to assure minimum disruption of facility operations. 2.2 Starting the Job Order (Notice to Proceed) The Contractor shall show evidence that work has commenced on the Job Order within seven (7) days from the effective date of the Notice to Proceed. Work in this case is not limited to physical work at the project site. Work started prior to the effective date stated in the Notice to Proceed shall be at the Contractor's risk. 2.3 Job Order Completion Time 2.3.1 The Job Order Completion Time will commence to run on the effective date stated in the Notice to Proceed. The City Contract Administrator will transmit an executed copy of the Job Order to the Contractor as well as a Notice to Proceed. 2.3.2 The Job Order Completion Time is that period of time allotted in the Job Order, as adjusted, for the Contractor to achieve Substantial and/or Final Completion of the Detailed Scope of Work. 2.3.3 The term "day" as used in the Contract Documents shall mean a calendar day unless otherwise specifically designated. 2.3.4 Substantial Completion occurs when the City can use the Work for the use for which it is intended, and when all required documentation has been properly submitted to the City in accordance with the Job Order. Such documentation shall include but is not necessarily limited to: a. Maintenance and Operations manuals; b. Warranties; and c. Submittals required by the Specifications. 2.3.5 Final Completion occurs when all requirements of the Job Order and Contract Documents have been properly and completely fulfilled including but not limited to: a. Completion of re -inspection and City approval of all Punch List items; b. Submittal of final invoice and approval by the Contract Administrator and Project Manager; c. Submittal of all properly completed as -built record drawings; and d. Submittal of any other documents required by the Job Order. Page 26 of 103 Packet Pg. 132 4.1.b 2.3.6 Final Acceptance is the formal action of the City accepting the Work as complete. 2.3.7 Progress and Completion a. All time limits stated in the Job Orders are of the essence of this Contract. b. The Contractor shall begin the Work on the date indicated in the Notice to Proceed and shall diligently prosecute the Work with adequate equipment and forces in order to bring the Work to completion within the Job Order Completion Time. 2.4 Extension of Time Any extension of Job Order Completion Time must have the written approval of the Project Manager/City and must conform to the procedures set forth in Article 10.4. 2.5 Before Starting Work 2.5.1 Before undertaking each part of the Work, the Contractor shall carefully study and compare the Detailed Scope of Work and check and verify pertinent figures shown thereon and all applicable field measurements. The Contractor shall promptly report in writing to the Project Manager any conflict, error or discrepancy which the Contractor may discover; however, the Contractor shall not be liable to the City for failure to report any conflict, error or discrepancy in the Detailed Scope of Work, Drawings or Specifications, unless the Contractor had actual knowledge thereof or should reasonably have known thereof. 2.5.2 If requested, within five (5) days after the effective date of the Notice to Proceed and prior to start of Work (unless otherwise specified in the General Requirements), the Contractor shall submit to the Project Manager for review a preliminary Schedule of the Values of the work. Each bid item shall be broken down to its basic elements. The cost breakdown for both lump sum and unit price estimates shall include: a. Labor; b. Materials; c. Equipment; d. Overhead, profit and taxes; e. Other factors; f. Time required. 2.5.3 If requested, within ten (10) days after the effective date of the Notice to Proceed and prior to start of Work, unless otherwise specified in the General Requirements, the Contractor is to submit to the Project Manager for review an estimated Progress Schedule indicating the starting and completion dates of the various stages of the Work and a Preliminary Schedule of Shop Drawings submissions. The Schedule should include a bar chart. The Contractor may use a commercial scheduling program such as the "Microsoft Project" or equal. All submissions of schedule Page 27 of 103 Packet Pg. 133 4.1.b information to the Project Manager or other City representatives are to be provided in hard copy format and electronic format. 2.6 Preconstruction Conference Within seven (7) days after the effective date of the Job Order, but before the Contractor starts the Work at the site, unless otherwise specified in the Contract Documents, a conference will be held with the Contractor, Project Manager, Contract Administrator and others as determined by the Project Manager for review of the schedules to establish procedures for handling Shop Drawings and other submittals, for processing Applications for Payment, and to establish a working understanding among the parties as to the Work. END ARTICLE 2 Page 28 of 103 Packet Pg. 134 4.1.b ARTICLE 3 CONTRACT DOCUMENTS: INTENT, CORRELATION, EXECUTION OF AND OWNERSHIP OF CONTRACT DOCUMENTS 3.1 Intent 3.1.1 The Contract Documents comprise the entire Contract between the City and the Contractor concerning the Work. 3.1.2 The Detailed Scope of Work is complementary; what is called for by one is as binding as if called for by all. 3.1.3 It is the intent of the Detailed Scope of Work to describe a complete Project or part thereof or performance requirements to be completed in accordance with the Contract Documents. Any Work that may reasonably be inferred from the Detailed Scope of Work and the Contractor's Price Proposal as being required to produce the intended result shall be supplied whether or not it is specifically called for. Words, which have a well-known technical or trade meaning and are used to describe Work, materials or equipment, shall be interpreted in accordance with such meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the code of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual or code in effect at the time of Price Proposal Submittal or on the effective date of the Job Order. However, no provision of any referenced standard specification, manual or code whether or not specifically incorporated by reference in the Detailed Scope of Work shall change the duties and responsibilities of the City or the Contractor, or any of their agents or employees from those set forth in the Contract Documents. Clarifications and interpretations of the Detailed Scope of Work shall be issued by the Project Manager as provided for in section 9.2. 3.2 Correlation of the Contract Documents 3.2.1 Each Contract Document is an essential part of the Contract between the City and the Contractor. The Contract Documents are intended to be complementary and prescribe and provide for all Work required by the Job Orders. Anything mentioned in the Specifications and not shown in the Detailed Scope of Work, or shown in the Drawings and not mentioned in the Specifications, shall be of like effect as if shown or mentioned in both. Any Work, materials or equipment that has not been specifically included in the Detailed Scope of Work but which is reasonably required to produce the intended result shall be provided by the Contractor as though it had been specifically included. 3.2.2 If there are discrepancies between the various Contract Documents, Specifications shall govern over Conditions and Drawings, Drawings shall govern over Conditions, larger scale drawings shall govern over smaller scale drawings, Supplementary Conditions shall govern over General Conditions, computed dimensions shall govern over scaled dimensions, and specific descriptions shall govern over general ones. Page 29 of 103 Packet Pg. 135 4.1.b 3.2.3 In the event of a conflict between the Detailed Scope of Work or the Contract Documents and applicable laws, codes, ordinances, regulations or orders of governmental authorities having jurisdiction over the Work or any portion thereof, or in the event of any conflict between such applicable laws, codes, ordinances, regulations, or orders, the most stringent requirements of any of the above shall govern and be considered as a part of this Contract in order to afford the City the maximum benefits thereof. 3.3 No Warranties by the City 3.3.1 No information derived from inspection of records or reports of investigation concerning the Work or conditions at the site(s) of the Work made or provided by the City will in any way relieve the Contractor from its responsibility for properly performing its obligations under the Contract Documents. Such records and reports are provided solely for the convenience of the Contractor with no warranties whatsoever, express or implied, by the City. Such records and reports are not part of the Contract Documents. The Contractor shall make its own conclusions and interpretations from the data supplied, information available from other sources, and the Contractor's own observations. 3.3.2 The Contract Documents will be governed by the laws of the State of Washington END ARTICLE 3 Page 30 of 103 Packet Pg. 136 4.1.b ARTICLE 4 PHYSICAL CONDITIONS AND REFERENCE POINTS 4.1 Unforeseen Physical Conditions The Contractor shall promptly notify the Project Manager in writing of any latent physical conditions at the site or in an existing structure differing materially from those indicated or referred to in the Detailed Scope of Work. The Project Manager will promptly review those conditions. If the Project Manager finds that there are latent physical conditions which differ materially from those intended in the Detailed Scope of Work, the Project Manager will prepare a Supplementary Job Order incorporating modifications to plans and specifications as necessary to proceed with and complete the Work. END ARTICLE 4 Page 31 of 103 Packet Pg. 137 4.1.b ARTICLE 5 BONDS AND INSURANCE 5.1 Performance Bond The Contractor shall furnish a duly executed Performance Bond upon a form provided by the City within ten (10) calendar days following receipt of the Notice of Award. The Bond shall be executed by a licensed surety which is registered with the Washington State Insurance Commissioner and the surety's name shall appear in the current Authorized Insurance Company List for the State of Washington published by the Office of the Insurance Commissioner, and must be approved by the U.S. Department of Treasury as evidenced by a listing in the Federal Register. In addition, the surety must be rated "A-, FSC (6)" or higher by A.M. Best Rating Guide. The penal amount of the bond shall be in an amount equal to the amount stated in the Proposal Requirements and conditioned upon the faithful performance of the Contract by the Contractor. If the Surety on any Performance Bond furnished by the Contractor is declared bankrupt or becomes insolvent, or its right to do business is terminated in the state of Washington, or it ceases to meet the requirements as stated above, the Contractor shall within five (5) days thereafter substitute another Bond and Surety. The City reserves the right to approve or reject any substitute Bond and Surety. The Performance Bond will initially be in the penal sum equal to Two Million Dollars ($2,000,000). In the event the parties agree to exercise the option to extend the Contract, or if the cumulative amount of Work issued and not yet completed and accepted exceeds such amount, the Contractor shall deliver a new Performance Bond or a rider as required by the City. Additionally, the Contractor shall also provide a signed "Letter of Bondability" stating that the Contractor is able to bond to the possible increased Contract Value of Four Million Dollars ($4,000,000). For a Federally Funded Work Order, the Contractor may be required to submit an additional performance bond in accordance with the applicable Federal Contract Clauses. 5.2 Payment Bond The Contractor shall also furnish a duly executed Payment Bond upon a form provided by the City, within ten (10) calendar days following receipt of the Notice of Award. The Bond shall be executed by a licensed surety which is registered with the Washington State Insurance Commissioner and the surety's name shall appear in the current Authorized Insurance Company List in the State of Washington published by the Office of the Insurance Commissioner, and must be approved by the U.S. Department of Treasury as evidenced by a listing in the Federal Register. In addition, the surety must be rated "A-, FSC (6)" or higher by A.M. Best Rating Guide. The penal amount of the bond shall be in the amount stated in the Proposal Requirements and conditioned upon the payment by the Contractor to all laborers, mechanics, Subcontractors, suppliers, and all persons who shall supply for the performance of the Work covered by this Contract. If the Surety on any Payment Bond furnished by the Contractor is declared bankrupt or becomes insolvent, or its right to do business is terminated in the state of Washington, or Page 32 of 103 Packet Pg. 138 4.1.b 5.3 it ceases to meet the requirements as stated above, the Contractor shall within five (5) days thereafter substitute another Bond and Surety. The City reserves the right to approve or reject any substitute Bond and Surety. The Payment Bond will initially be in the penal sum equal to Two Million Dollars ($2,000,000). In the event the parties agree to exercise the option to extend the Contract, or if the cumulative amount of Work issued and not yet completed and accepted exceeds such amount, the Contractor shall deliver a new Payment Bond or a rider as required by the City. Additionally, The Contractor shall also provide a signed "Letter of Bondability" stating that the Contractor is able to bond to the possible increased Contract Value of Four Million Dollars ($4,000,000). For a Federally Funded Work Order, the Contractor may be required to submit an additional payment bond in accordance with the applicable Federal Contract Clauses. Contractor's Liability Insurance 5.3.1 The Contractor shall purchase and maintain such commercial general liability and other insurance as will provide protection from claims set forth below which may arise out of or result from the Contractor's performance of the Work and the Contractor's other obligations under the Contract Documents, whether such performance is by the Contractor, by any Subcontractor, by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. a. Commercial General Liability Insurance on an Occurrence Basis in an amount not less than Two Million Dollars ($2,000,000) per occurrence and at least Five Million Dollars ($5,000,000) in the annual aggregate, including but not limited to: 1. Bodily Injury Liability; 2. Property Damage Liability (to include explosion, collapse and underground); 3. Blanket Contractual Liability; 4. Premises/Operations (including off -site operations); 5. Broad Form Property Damage Liability; 6. Products: Completed Operations Liability; 7. Personal Injury Liability; 8. Liability for Property of Others in the Care, Custody and Control of the Contractor. Claims Covered: The Contractor shall purchase and maintain commercial general liability insurance, covering all operations by or on behalf of the Contractor, on an occurrence basis, against: 1. claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees. 2. claims for damages insured by reasonably available personal injury liability coverage. Page 33 of 103 Packet Pg. 139 4.1.b 3. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefrom. Form and Content: The Contractor's commercial liability policy shall be written on a 1996 (or later) ISO commercial general liability form (occurrence form) and include the following coverages and endorsements: 1. Products and completed operations coverage: a. Such insurance shall be maintained for three (3) years after final payment. b. The Contractor shall furnish the City and each other additional insured (as identified in the Supplementary Conditions or elsewhere in the Contract) evidence of continuation of such insurance at final payment and three (3) years thereafter. 2. Blanket contractual liability coverage, to the extent permitted by law, including but not limited to coverage of the Contractor's contractual indemnity obligations in Section 6.32 ("Indemnification"). 3. Broad form property damage coverage. 4. Severability of interest. 5. Underground, explosion, and collapse coverage. 6. Personal injury coverage. 7. Additional insured endorsements that include both ongoing operations and products and completed operations coverage through ISO Endorsements CG 20 10 10 01 and CG 20 37 10 01 (together); or CG 20 10 07 04 and CG 20 37 07 04 (together); or their equivalent. 8. For design professional additional insureds, ISO Endorsement CG 20 32 07 04, "Additional Insured —Engineers, Architects or Surveyors Not Engaged by the Named Insured" or its equivalent. Commercial General Liability Insurance shall be written on Insurance Services Office ("ISO") occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop gap liability, independent contractors, products- completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The City shall be named an insured under the Contractor's Commercial General Liability insurance policy with respect to the Work performed for the City using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage b. Comprehensive Automobile Liability Insurance: The Contractor shall purchase and maintain automobile liability insurance against claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance, or use of any motor vehicle. The automobile liability policy shall be written on an occurrence basis. The Contractor shall provide proof of insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence, including but not limited to: 1. Bodily Injury Liability; 2. Property Damage Liability; 3. Personal Injury Liability; 4. Owned and Non -Owned Auto Liability; 5. Hired and Borrowed Auto Liability. Page 34 of 103 Packet Pg. 140 4.1.b Comprehensive Automobile Liability Insurance covering all owned, non -owned, hired and leased vehicles as well as employee vehicles utilized in performance or the Work or at the Work site shall be provided. Coverage shall be written on ISO form CA 00 01 or a substitute form providing equivalent liability coverage. The insurance policy shall be endorsed to provide contractual liability coverage. c. Worker's Compensation as required by Washington law and Employer's Liability Insurance (Stop Gap) with limits not less than One Million Dollars ($1,000,000) per occurrence. If the City authorizes sublet work, the Contractor shall require each subcontractor to provide Worker's Compensation Insurance for its employees, unless the Contractor covers such employees. The Contractor shall purchase and maintain workers' compensation and employer's liability insurance for: 1. claims under workers' compensation, disability benefits, and other similar employee benefit acts; 2. United States Longshoreman and Harbor Workers' Compensation Act and Jones Act coverage (if applicable); 3. claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees (by stop -gap endorsement in monopolist worker's compensation states); and 4. Foreign voluntary worker compensation (if applicable). The Contractor shall comply with the following conditions and procure and keep in force during the term of this Contract, at the Contractor's own cost and expense, the policies of insurance with companies authorized to do business in the State of Washington, which are rated at least "A" or better and with a numerical rating of no less than VI I, by A.M. Best Company and which are acceptable to the City. The Contractor's insurance coverage shall be primary insurance as respect to the City. Any insurance, self-insurance or other coverage maintained by the City shall be for the protection of the City and excess to the Contractor's insurance and shall not contribute with it. The above liability policies shall be endorsed to contain a provision that the policy shall not be canceled or materially changed without thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of the Contractor to furnish the required insurance during the term of this Contract. The Insurer or his/her agent will furnish to the Contract Administrator upon request, prior to any Work being performed, a copy of any policy cited above, certified to be a true and complete copy of the original. The Contractor shall provide the Contract Administrator, prior to any Work being performed, a Certificate of Insurance and additional insured endorsement(s) acceptable to the City Attorney evidencing the above -required insurance(s) and naming the City of Edmonds, its officers, employees and agents as Additional Insureds on the Commercial General Liability Insurance policy and the Business Automobile Liability Insurance policy with respect to the operations performed and services provided under this Contract; and that such insurance shall apply as primary insurance on behalf of such Additional Insureds. The City shall be named as an Additional Insured by endorsement using ISO Form CG 2010 or equivalent. Receipt by the City of any certificate showing less coverage than required is not a waiver of the Contractor's obligations to fulfill the requirements. Page 35 of 103 Packet Pg. 141 4.1.b 5.3.2 Contractor's Insurance for Other Losses. The Contractor shall assume full responsibility for all loss or damage from any cause whatsoever to any tools, the Contractor's employee owned tools, machinery, equipment or motor vehicles owned or rented by the Contractor, or the Contractor's agents, suppliers or subcontractors as well as to any temporary structures, scaffolding and protective fences. 5.3.3 General Provisions a. The City and the Contractor shall obtain and maintain insurance as required in this Section and in the Supplementary Conditions. b. All insurance required by the Contract to be purchased and maintained by the City or the Contractor shall be obtained from insurance companies that are duly licensed or U authorized, in the state orjurisdiction in which the Project is located, to issue insurance policies for the required limits and coverages. Unless a different standard is indicated in 0 the Supplementary Conditions, all companies that provide insurance policies required under this Contract shall have an A.M. Best rating of A-VII or better. c. The Contractor shall deliver to the City, with copies to each named insured and ° additional insured (as identified in this Section, in the Supplementary Conditions, or elsewhere in the Contract), certificates of insurance establishing that the Contractor has obtained and is maintaining the policies, coverages, and endorsements required by a the Contract. Upon request by the City or any other insured, the Contractor shall also —� furnish other evidence of such required insurance, including but not limited to copies of c policies and endorsements, and documentation of applicable self -insured retentions and deductibles. The Contractor may block out (redact) any confidential premium or pricing information contained in any policy or endorsement furnished under this U provision. 6 d. The City shall deliver to the Contractor, with copies to each named insured and additional insured (as identified in this Section, the Supplementary Conditions, or elsewhere in the Contract), certificates of insurance establishing that the City has obtained and is maintaining the policies, coverages, and endorsements required of the N City by the Contract (if any). Upon request by the Contractor or any other insured, the City shall also provide other evidence of such required insurance (if any), including but E not limited to copies of policies and endorsements, and documentation of applicable self -insured retentions and deductibles. The City may block out (redact) any a confidential premium or pricing information contained in any policy or endorsement furnished under this provision. e. Failure of the City or the Contractor to demand such certificates or other evidence of the other party's full compliance with these insurance requirements, or failure of the City or the Contractor to identify a deficiency in compliance from the evidence provided, a shall not be construed as a waiver of the other party's obligation to obtain and maintain such insurance. f. If either party does not purchase or maintain all of the insurance required of such party by the Contract, such party shall notify the other party in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. g. If the Contractor has failed to obtain and maintain required insurance, the City may exclude the Contractor from the site, impose an appropriate set-off against payment, and exercise the City's termination rights under Article 13. Page 36 of 103 Packet Pg. 142 4.1.b h. Without prejudice to any other right or remedy, if a party has failed to obtain required insurance, the other party may elect to obtain equivalent insurance to protect such other party's interests at the expense of the party who was required to provide such coverage, and the Contract Price shall be adjusted accordingly. i. The City does not represent that insurance coverage and limits established in this Contract necessarily will be adequate to protect the Contractor or the Contractor's interests. j. The insurance and insurance limits required herein shall not be deemed as a limitation on the Contractor's liability under the indemnities granted to the City and other individuals and entities in the Contract. k. General provisions: The policies of insurance required by this Paragraph 5.3.3 shall: i. include at least the specific coverages provided in this Article; ii. be written for not less than the limits of liability provided in this Article and in the Supplementary Conditions, or required by Laws or Regulations, whichever is greater; iii. contain a provision or endorsement that the coverage afforded will not be canceled, materially changed, or renewal refused until at least ten (10) days prior written notice has been given to the Contractor. Within three (3) days of receipt of any such written notice, the Contractor shall provide a copy of the notice to the City and each other insured under the policy; iv. remain in effect at least until final payment (and longer if expressly required in this Article) and at all times thereafter when the Contractor may be correcting, removing, or replacing defective Work as a warranty or correction obligation, or otherwise, or returning to the site to conduct other tasks arising from the Contract Documents; and v. be appropriate for the Work being performed and provide protection from claims that may arise out of or result from the Contractor's performance of the Work and the Contractor's other obligations under the Contract Documents, whether it is to be performed by the Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable. vi. The coverage requirements for specific policies of insurance must be met by such policies, and not by reference to excess or umbrella insurance provided in other policies. Umbrella or excess liability: The Contractor shall purchase and maintain umbrella or excess liability insurance written over the underlying employer's liability, commercial general liability, and automobile liability insurance described in the paragraphs above. Subject to industry - standard exclusions, the coverage afforded shall follow form as to each and every one of the underlying policies. Contractor's pollution liability insurance: The Contractor shall purchase and maintain a policy covering third -party injury and property damage claims, including clean-up costs, as a result of pollution conditions arising from the Contractor's operations and completed operations. This insurance shall be maintained for no less than three (3) years after final completion. Additional insureds: The Contractor's commercial general liability, automobile liability, umbrella or excess, and pollution liability policies shall include and list as additional insureds the City and the Engineer, and any individuals or entities identified in the Supplementary c 0 U a� 0 0 a Page 37 of 103 Packet Pg. 143 4.1.b Conditions; include coverage for the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of all such additional insureds; and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby (including as applicable those arising from both ongoing and completed operations) on a non-contributory basis. The Contractor shall obtain all necessary endorsements to support these requirements. Contractor's professional liability insurance: If the Contractor will provide or furnish professional services under this Contract, through a delegation of professional design services or otherwise, then the Contractor shall be responsible for purchasing and maintaining applicable professional liability insurance. This insurance shall provide protection against claims arising out of performance of professional design or related services, and caused by a negligent error, omission, or act for which the insured party is legally liable. It shall be maintained throughout the duration of the Contract and for a minimum of two (2) years after Substantial Completion. If such professional design services are performed by a Subcontractor, and not by the Contractor itself, then the requirements of this paragraph may be satisfied through the purchasing and maintenance of such insurance by such Subcontractor. 5.3.4 Citv's Liabilitv Insurance a. In addition to the insurance required to be provided by the Contractor under Paragraph 5.3.3, the City, at the City's option, may purchase and maintain at the City's expense the City's own liability insurance as will protect the City against claims which may arise from operations under the Contract Documents. b. The City's liability policies, if any, operate separately and independently from policies required to be provided by the Contractor, and the Contractor cannot rely upon the City's liability policies for any of the Contractor's obligations to the City, the Engineer, or third parties. 5.3.5 Proaerty Insurance a. Builder's Risk: Unless otherwise provided in the Supplementary Conditions and on a Job Order by Job Order basis as required by the City, the Contractor shall purchase and maintain builder's risk insurance upon the Work on a completed value basis, in the amount of the full insurable replacement cost thereof (subject to such deductible amounts as may be provided in the Supplementary Conditions or required by Laws and Regulations). This insurance shall: i. include the City and the Contractor as named insureds, and all Subcontractors, and any individuals or entities required by the Supplementary Conditions to be insured under such builder's risk policy, as insureds or named insureds. For purposes of the remainder of this Paragraph 5.3.5 and any corresponding Supplementary Conditions, the parties required to be insured shall collectively be referred to as "insureds." ii. be written on a builder's risk "all risk" policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire; lightning; windstorm; riot; civil commotion; terrorism; vehicle impact; aircraft; smoke; theft; vandalism and malicious mischief; mechanical breakdown, boiler explosion, and artificially generated electric current; earthquake; volcanic activity, and other earth L r.+ 0 U L M L 0 0 L 3 a Page 38 of 103 Packet Pg. 144 4.1.b movement; flood; collapse; explosion; debris removal; demolition occasioned by enforcement of Laws and Regulations; water damage (other than that caused by flood); and such other perils or causes of loss as may be specifically required by the Supplementary Conditions. If insurance against mechanical breakdown, boiler explosion, and artificially generated electric current; earthquake; volcanic activity, and other earth movement; or flood, are not commercially available under builder's risk policies, by endorsement or otherwise, such insurance may be provided through other insurance policies acceptable to the City and the Contractor. iii. cover, as insured property, at least the following: (a) the Work and all materials, supplies, machinery, apparatus, equipment, fixtures, and other property of a similar nature that are to be incorporated into or used in the preparation, fabrication, construction, erection, or completion of the Work, including City - furnished or assigned property; (b) spare parts inventory required within the scope of the Contract; and (c) temporary works which are not intended to form part of the permanent constructed Work but which are intended to provide working access to the site, or to the Work under construction, or which are intended to provide temporary support for the Work under construction, including scaffolding, form work, fences, shoring, falsework, and temporary structures. iv. cover expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects). V. extend to cover damage or loss to insured property while in temporary storage at the site or in a storage location outside the site (but not including property stored at the premises of a manufacturer or Supplier). vi. extend to cover damage or loss to insured property while in transit. vii. allow for partial occupation or use of the Work by the City, such that those portions of the Work that are not yet occupied or used by the City shall remain covered by the builder's risk insurance. viii. allow for the waiver of the insurer's subrogation rights, as set forth below. ix. provide primary coverage for all losses and damages caused by the perils or causes of loss covered. X. not include a co-insurance clause. A. include an exception for ensuing losses from physical damage or loss with respect to any defective workmanship, design, or materials exclusions. xii. include performance/hot testing and start-up. xiii. be maintained in effect, subject to the provisions herein regarding Substantial Completion and partial occupancy or use of the Work by the City, until the Work is complete. b. Notice of Cancellation or Change: All the policies of insurance (and the certificates or other evidence thereof) required to be purchased and maintained in accordance with this Paragraph 5.3.5 will contain a provision or endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until at least ten (10) days prior written notice has been given to the purchasing policyholder. Within three (3) days of receipt of any such written notice, the purchasing policyholder shall provide a copy of the notice to each other insured. U c 0 U a� 0 0 a Page 39 of 103 Packet Pg. 145 4.1.b c. Deductibles: The purchaser of any required builder's risk or property insurance shall pay for costs not covered because of the application of a policy deductible. d. Partial Occupancy or Use by the City: If the City will occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work as provided in Paragraph 12.4 and 12.5, then the City (directly, if it is the purchaser of the builder's risk policy, or through the Contractor) will provide notice of such occupancy or use to the builder's risk insurer. The builder's risk insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy; rather, those portions of the Work that are occupied or used by the City may come off the builder's risk policy, while those portions of the Work not yet occupied or used by the City shall remain covered by the builder's risk insurance. e. Additional Insurance: If the Contractor elects to obtain other special insurance to be included in or supplement the builder's risk or property insurance policies provided under this Paragraph 5.3.5, it may do so at the Contractor's expense. Insurance of Other Property: If the express insurance provisions of the Contract do not require or address the insurance of a property item or interest, such as tools, construction equipment, or other personal property owned by the Contractor, a Subcontractor, or an employee of the Contractor or a Subcontractor, then the entity or individual owning such property item will be responsible for deciding whether to insure it, and if so in what amount. The Contractor certifies that it is aware of the provisions of Title 51 of the Revised Code of Washington which requires every employer to be insured against liability of Workers' Compensation, or to undertake self-insurance in accordance with the provisions of that Title. The Contractor shall comply with the provisions of Title 51 of the Revised Code of Washington before commencing the performance of any Work. The Contractor shall provide the Contract Administrator with evidence of Workers' Compensation Insurance (or evidence of qualified self-insurance) before any Work is commenced. In case of breach of any provision of this section, the City may, at its option and with no obligation to do so, provide and maintain at the expense of the Contractor, such types of insurance in the name of the Contractor, and with such insurers, as the City may deem proper, and may deduct the cost of providing and maintaining such insurance from any sums which may be found or become due to the Contractor under this Contract or may demand the Contractor to promptly reimburse the City for such cost. 5.4 Contractor Pollution Liability 5.4.1 If a Job Order requires Contractor Pollution Liability, the successful Contractor(s) will be required to provide Contractor Pollution Liability with minimum limits of liability of not less than One Million Dollars ($1,000,000) per claim or occurrence and Two Million Dollars ($2,000,000) aggregate per policy period of one (1) year. U r c 0 U a� 0 0 a Page 40 of 103 Packet Pg. 146 4.1.b If the Contractor Pollution Liability coverage is written on a claims -made form: a. The retroactive date must be shown and must be before the date of the Contract or the start of Work; b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Work; c. If coverage is canceled or non -renewed and not replaced with another claims - made policy form with a retroactive date prior to the Contract Date the Contractor must purchase an extended period coverage for a minimum of five (5) years after the completion of the Work; d. A copy of the claims reporting requirements must be submitted to the City for review. 5.5 Waiver of Rights 5.5.1 All policies purchased in accordance with Paragraph 5.3.5, expressly including the builder's risk policy, shall contain provisions to the effect that in the event of payment of any loss or damage the insurers will have no rights of recovery against any insureds thereunder, or against the Engineer or its consultants, or their officers, directors, members, partners, employees, agents, consultants, or subcontractors. The City and the Contractor waive all rights against each other and the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against the Engineer, its consultants, all Subcontractors, all individuals or entities identified in the Supplementary Conditions as insureds, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, under such policies for losses and damages so caused. None of the above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by the City or the Contractor as trustee or fiduciary, or otherwise payable under any policy so issued. 5.5.2 The City waives all rights against the Contractor, Subcontractors, and the Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, for: a. loss due to business interruption, loss of use, or other consequential loss extending beyond direct physical loss or damage to the City's property or the Work caused by, arising out of, or resulting from fire or other perils whether or not insured by the City; and b. loss or damage to the completed Project or part thereof caused by, arising out of, or resulting from fire or other insured peril or cause of loss covered by any property insurance maintained on the completed Project or part thereof by the City during partial occupancy or use, after Substantial Completion, or after final payment. Page 41 of 103 Packet Pg. 147 4.1.b c. Any insurance policy maintained by the City covering any loss, damage or consequential loss referred to in Paragraph 5.5.2(b) shall contain provisions to the effect that in the event of payment of any such loss, damage, or consequential loss, the insurers will have no rights of recovery against the Contractor, Subcontractors, or the Engineer, or the officers, directors, members, partners, employees, agents, consultants, or subcontractors of each and any of them. 5.5.3 The Contractor shall be responsible for assuring that the agreement under which a Subcontractor performs a portion of the Work contains provisions whereby the Subcontractor waives all rights against the City, the Contractor, all individuals or entities identified in the Supplementary Conditions as insureds, the Engineer and its consultants, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils or causes of loss covered by builder's risk insurance and any other property insurance applicable to the Work. 5.6 Receipt and Application of Property Insurance Proceeds 5.6.1 Any insured loss under the builder's risk and other policies of insurance required by Paragraph 5.3.5 will be adjusted and settled with the named insured that purchased the policy. Such named insured shall act as fiduciary for the other insureds and give notice to such other insureds that adjustment and settlement of a claim is in progress. Any other insured may state its position regarding a claim for insured loss in writing within fifteen (15) days after notice of such claim. 5.6.2 Proceeds for such insured losses may be made payable by the insurer either jointly to multiple insureds, or to the named insured that purchased the policy in its own right and as fiduciary for other insureds, subject to the requirements of any applicable mortgage clause. A named insured receiving insurance proceeds under the builder's risk and other policies of insurance required by Paragraph 5.3.5 shall distribute such proceeds in accordance with such agreement as the parties in interest may reach, or as otherwise required under the dispute resolution provisions of this Contract or applicable Laws and Regulations. 5.6.3 If no other special agreement is reached, the damaged Work shall be repaired or replaced, the money so received applied on account thereof, and the Work and the cost thereof covered by Supplemental Job Order, if needed. END ARTICLE 5 Page 42 of 103 Packet Pg. 148 4.1.b ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES 6.1 Examination of the Site of Work and Detailed Scope of Work By submitting a Job Order Proposal for a Job Order, the Contractor represents that it has carefully examined and investigated the site(s) of the Work, including material site(s), and the Detailed Scope of Work. The submission of its Job Order Proposal shall be conclusive evidence that the Contractor represents and acknowledges that it has made such examinations and investigations and is satisfied as to the conditions to be encountered in the performance of the Work, including the character, quantity, quality, and Detailed Scope of the Work, safety precautions to be undertaken, the quantities and qualities of materials to be supplied, and equipment and labor to be used, the requirements of the Detailed Scope of Work and how all such requirements correlate to the conditions at the site(s) of the Work. The Contractor shall determine from careful examination of the Detailed Scope of Work and the site of the Work, the methods, materials, labor, and equipment required to perform the Work in full, and the Contractor shall reflect the same in its Proposal. 6.2 Error, Inconsistency, Omission or Variance in the Contract Documents The Contractor shall promptly report to the Project Manager and/or the Contract Administrator any error, inconsistency, omission, or variance from applicable laws, statutes, codes, ordinances, or regulations which it discovers in the Detailed Scope of Work. If the Contractor promptly reports such discovery prior to commencement of any portion of the Work affected by any such error, inconsistency, omission, or variance, the Contractor shall not be liable to the City for damage resulting from such error, inconsistency, omission, or variance. If, however, the Contractor fails either to carefully study and compare the Detailed Scope of Work, or to promptly report the discovery of any error, inconsistency, omission, or variance known or believed by the Contractor to exist, the Contractor shall assume full responsibility therefore and shall bear all costs, liabilities and damages attributable to such error, inconsistency, omission, or variance. 6.3 Supervision 6.3.1 The Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Detailed Scope of Work. The Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of Work. The Contractor shall be responsible to see that the finished Work complies accurately with the Detailed Scope of Work. 6.3.2 The Contractor will provide a competent resident supervisor who understands the contract and the task being performed to continuously oversee the contract work. The supervisor will not be replaced without written notice to the Project Manager except under extraordinary circumstances. The supervisor will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the supervisor shall be as binding as if given to the Contractor. Page 43 of 103 Packet Pg. 149 4.1.b a. Any supervisor who repeatedly fails to follow the Project Manager's written or oral orders, directions, instructions, or determinations, or who has proven to be incompetent, careless, or negligent shall be subject to removal from the Work site. Upon the written request of the Project Manager or the Contract Administrator, the Contractor shall immediately remove such supervisor and name a replacement in writing. 6.3.3 The Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform the Work as required by the Detailed Scope of Work. The Contractor shall at all times maintain good discipline and order at the site. 6.3.4 Non-compliance with the Project Manager's request to remove and replace personnel at any level shall be grounds for terminating the Contract under the terms of Article 13. 6.3.5 The Contractor shall be fully responsible to the City for the acts or omissions of its employees, agents, Subcontractors, Sub -Subcontractors, suppliers, and their agents and employees, and all other persons who are to perform any of the Work. 6.3.6 The Contractor may not assign any portion of this Contract without the City's prior written consent. 6.4 Labor, Materials, and Equipment 6.4.1 The Contractor shall furnish all materials, equipment, labor, transportation, equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, and sanitary facilities and all other facilities and incidentals necessary for the execution, testing, initial operation and completion of the Work. 6.4.2 All materials and equipment shall be of good quality and new, except as otherwise provided in the Detailed Scope of Work. If required by the Project Manager, the Contractor shall furnish satisfactory evidence (including reports or required tests) as to the kind and quality of materials and equipment. 6.4.3 All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturer, fabricator, supplier or distributor, except as otherwise provided in the Contract Documents. 6.4.4 For equipment and materials that are permanently incorporated in the Work, the Contractor will provide to the Project Manager all Owners Manuals and Operating Instructions furnished by the equipment or material manufacturer. Page 44 of 103 Packet Pg. 150 4.1.b 6.5 Equivalent Materials and Equipment, "or Equal" 6.5.1 Whenever materials or equipment are specified or described in the Detailed Scope of Work, Drawings, Construction Task Catalog° or Specifications by using the name of a proprietary item or the name of a particular manufacturer, fabricator, supplier or distributor, the naming of the item is intended to establish the type, function, and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other manufacturers, fabricators, suppliers or distributors may be accepted by the Project Manager if sufficient information is submitted by the Contractor to allow the Project Manager to determine that the material or equipment proposed is equivalent to that named. The procedure for review by the Project Manager will be as set forth in Section 6.5.2 below as supplemented in the General Requirements. 6.5.2 Requests for review of substitute items of material and equipment will not be accepted by the Project Manager from anyone other than the Contractor. If the Contractor wishes to furnish or use a substitute item of material or equipment, the Contractor shall make written application to the Project Manager for acceptance thereof, certifying that the proposed substitute will perform adequately the functions called for by the general design, be similar and of equal substance to that specified, and be suited to the same use and capable of performing the same function as that specified. The application will state whether or not acceptance of the substitute for use in the Work will require a change in the Drawings or Specifications to adapt the design to the substitute and whether or not incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified shall be identified in the application and available maintenance, repair and replacement service will be indicated. The application will also contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs of redesign and claims of other contractors affected by the resulting change, all of which shall be considered by the Project Manager in evaluating the proposed substitute. The Project Manager may require the Contractor to furnish at the Contractor's expense additional data about the proposed substitute. The Project Manager will be the sole judge of acceptability, and no substitute will be ordered or installed without the Project Manager's prior written acceptance. The City may require the Contractor to furnish at the Contractor's expense a special performance guarantee or other surety with respect to any substitute. 6.6 Disposal of Demolished Materials 6.6.1 Waste material is defined as all material from demolition or other source that is unsuitable to, or in excess of, the needs of the Work or material that is designated for removal and disposal off of City property. All waste materials shall become the property of the Contractor. Materials containing substances classified as hazardous, potentially hazardous, infectious, toxic, or dangerous under applicable Local, State and/or Federal regulations shall be handled and disposed of as directed by applicable regulations, the Detailed Scope of Work and/or the Contract Documents. Page 45 of 103 Packet Pg. 151 4.1.b Proof of proper disposal of substances classified as hazardous, potentially hazardous, infectious, toxic, or dangerous is required by the City. 6.6.2 The Contractor is solely responsible for the lawful managing and disposal of waste material and shall indemnify, defend and hold the City harmless from all liability, damages, claims, lawsuits, penalties and expenses, whether direct, indirect or consequential including but not limited to attorney's and consultant's fees and other expenses of litigation or arbitration arising from or in any way connected with, the demolition, removal or disposal of materials, except as specified for hazardous materials. 6.6.3 The value of waste materials, if any, shall be reflected in the total Job Order price 6.6.4 During the course of the Work, if the Contractor encounters site materials that it believes may be hazardous, potentially hazardous, infectious, toxic, or dangerous, the Contractor will immediately notify the Project Manager and the Contract Administrator. 6.6.5 The City will retain title to all hazardous waste presently on -site encountered during demolition and removal. This does not include hazardous materials generated by the Contractor, such as used motor oils, lubricants, cleaners, etc. The Contractor shall dispose of such hazardous waste according to the Detailed Scope of Work and the Contract Documents, following local, State, and Federal regulations. The City of Edmonds will be shown as the hazardous waste generator and will sign all hazardous waste shipment manifests for non -contractor generated hazardous wastes. Nothing contained within these Contract Documents shall be construed or interpreted as requiring the Contractor to assume the status of the City or generator of hazardous waste substances for non -contractor generated hazardous wastes. 6.6.6 The Contractor shall follow all Environmental Protection Agency (EPA) and all other regulations regarding reporting the disposal of all materials. 6.7 Subcontractors and Sub -Subcontractors 6.7.1 Mandatory Criteria: As required by RCW 39.06.020 and 39.04.350(1), all subcontractors must satisfy all of the following criteria: • At the time of bid submittal, have a certificate of registration in compliance with Chapter 18.27 RCW; • Have a current state unified business identifier number; • If applicable, have Industrial Insurance coverage for the bidder's employees working in Washington as required in Title 51 RCW; an Employment Security Department number as required in Title 50 RCW; and a state excise tax registration number as required in Title 82 RCW; and • Not be disqualified from bidding on any public works contract under RCW 39.06.010 or 39.12.065(3). Page 46 of 103 Packet Pg. 152 4.1.b • If bidding on a public works project subject to the apprenticeship utilization requirements in RCW 39.04.320, not have been found out of compliance by the Washington State Apprenticeship and Training Council for working apprentices out of ratio, without appropriate supervision, or outside their approved work processes as outlined in their standards of apprenticeship under Chapter 49.04 RCW for the one-year period immediately preceding the date of the bid solicitation; and 6.7.2 The Contractor shall not employ any Subcontractor or other person or organization (including those who are to furnish the principal items of materials or equipment), whether initially or as a substitute, against whom the Project Manager may have reasonable objection. Acceptance of any Subcontractor, other person or r organization by the City or the Project Manager shall not constitute a waiver of any `o right of the City to reject defective Work. If the City after due investigation has reasonable objection to any Subcontractor other person or organization proposed by the Contractor after the issuance of the Job Order, the Contractor shall submit O an acceptable substitute. The Contractor shall not be required to employ any Subcontractor, other person or organization against whom the Contractor has -� reasonable objection. 3 a 6.7.3 The Contractor shall be fully responsible for all acts and omissions of its Subcontractors and of persons and organizations directly or indirectly employed by them and of persons and organizations for whose acts any of them may be liable to the same extent that the Contractor is responsible for the acts and omissions of persons directly employed by the Contractor. Nothing in the Contract Documents shall create any contractual relationship between the City or any contractor or other person or organization having a direct contract with the Contractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any contractor or other person or organization, except as may otherwise be required by law. The City may furnish to any Subcontractor or other person or organization, to the extent practicable, evidence of amounts paid to the Contractor on account of specific Work done. 6.7.4 All Work performed for the Contractor by a Subcontractor will be pursuant to an appropriate agreement between the Contractor and the Subcontractor which specifically binds the Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of the City. The City reserves the right to obtain copies of any Subcontractor and supplier agreements at any tier from the Contractor. 6.7.5 The Contractor will pay Subcontractors, in accordance with its contractual obligations to such parties, all the amounts the Contractor has received from the City on account of their work. The Contractor will impose similar requirements on Subcontractors to pay those parties with whom they have contracted. 6.8 Patent Fees and Royalties 6.8.1 The Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any Page 47 of 103 Packet Pg. 153 4.1.b invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Detailed Scope of Work for use in the performance of the Work and if to the actual knowledge of the City its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by the City in the Job Order. The Contractor shall indemnify and hold harmless the City and anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses (including attorneys' fees) arising out of any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Detailed Scope of Work, and shall defend all such claims in connection with any alleged infringement of such rights. 6.9 Laws and Regulations 6.9.1 The Contractor shall give all notices and comply with all laws, ordinances, rules, and regulations applicable to the Work. If the Contractor observes that the Specifications or Drawings are at variance therewith, the Contractor shall give the Project Manager prompt written notice thereof, and any necessary changes shall be adjusted by an appropriate modification. If the Contractor performs any Work knowing or having reason to know that it is contrary to such laws, ordinances, rules and regulations, and without such notice to the Project Manager, the Contractor shall bear all costs arising therefrom; however, it shall not be the Contractor's primary responsibility to make certain that the Detailed Scope of Work, Specifications and Drawings are in accordance with such laws, ordinances, rules and regulations. 6.10 Taxes 6.10.1 The Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the law of the State of Washington. All taxes are considered to be included in the Adjustment Factors. 6.11 Use of Premises 6.11.1 The Contractor shall confine equipment, the storage of materials and equipment and the operations of workmen to areas permitted by the City, and shall not unreasonably encumber the premises with equipment or other materials. 6.11.2 During the progress of the Work, the Contractor shall keep the premises free from accumulations of waste materials, rubbish, and other debris resulting from the Work. At the completion of the Work, the Contractor will remove all waste materials, rubbish, and debris from and about the premises as well as all tools, appliances, equipment and machinery, and surplus materials. The Contractor will leave the site clean and ready for occupancy by the City and restore to original condition any portions of the site not designated for alteration by the Detailed Scope of Work. Page 48 of 103 Packet Pg. 154 4.1.b 6.11.3 The Contractor will not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor will the Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.12 Record Documents 6.12.1 The Contractor shall keep one (1) record copy of all Specifications, Drawings, Addenda, modifications, Shop Drawings and samples at the site, in good order and annotated to show all changes made during the construction process. These will be available to the Project Manager and the Contract Administrator for examination and shall be delivered to the Project Manager for the City upon completion of the Work before final payment is made. 6.13 Safety and Protection 6.13.1 The Contractor will be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The Contractor shall take all necessary precautions for the safety of, and provide the necessary protection to prevent damage, injury or loss to: a. All employees on the Work and other persons who may be affected thereby; b. All the Work and all materials or equipment to be incorporated therein, whether in storage on or off the site; and c. Other property at the site or adjacent thereto, including vegetation, walks, pavements, roadways, structures, and utilities not designated for removal, relocation or replacement in the course of construction. It will be the Contractor's responsibility to protect the Work and repair any damages to the Work until after Final Acceptance, as defined in Article 12, has been achieved. 6.13.2 The Contractor will comply with all applicable laws, ordinances, rules, regulations, and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and will erect and maintain all necessary safeguards for such safety and protection. The Contractor will notify owners of adjacent property and utilities when prosecution of the Work may affect them. All damage, injury or loss to any property caused, directly or indirectly, in whole or in part, by the Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by the Contractor (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of the City or the Project Manager or anyone employed by either of them or anyone for whose acts either of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of the Contractor). The Contractor's duties and responsibilities for the safety and protection of the Work will continue until such time as all the Work is completed and the Project Manager has issued a notice to the Contractor in accordance with these General Conditions that the Work is acceptable. Page 49 of 103 Packet Pg. 155 4.1.b 6.13.3 The Contractor shall designate a responsible member of its organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's supervisor unless otherwise designated in writing by the Contractor to the City. 6.14 Emergencies 6.14.1 In emergencies affecting the safety or protection of persons, Work or property at the site or adjacent thereto, the Contractor, without special instruction or authorization from the Project Manager, is obligated to act to prevent threatened damage, injury or loss. The Contractor will give the Project Manager and the Contract Administrator prompt written notice of any significant changes in the Work or deviations from the Detailed Scope of Work caused thereby. 6.15 Shop Drawings and Samples 6.15.1 After checking and verifying all field measurements, the Contractor will submit Shop Drawings to the Project Manager for review and approval, as specified in the Job Order. The data shown on the Shop Drawings will be complete with respect to dimensions, design criteria, materials of construction and like information to enable the Project Manager to review the information as required. 6.15.2 The Contractor will promptly submit to the Project Manager for review and approval all samples required by the Job Order. All samples will have been checked by and stamped with the approval of the Contractor, identified clearly as to material, manufacturer, any pertinent catalog numbers, and the use for which intended. 6.15.3 At the time of sample and drawings submissions, any identified deviations from the Detailed Scope of Work will be called, in writing, to the Project Manager's attention. 6.15.4 The Project Manager will review Shop Drawings and samples within fifteen (15) days, but the Project Manager's review and approval shall be only for conformance with the design concept of the Project and for compliance with the information given in the Detailed Scope of Work and will not extend to means, methods, sequences, techniques, or procedures of construction or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. The Contractor will make any corrections required by the Project Manager and return the required number of corrected copies of Shop Drawings and resubmit new samples for review and approval. The Contractor will direct specific attention in writing to revisions other than the corrections called for by the Project Manager on previous submittals. The Contractor's stamp of approval on any Shop Drawing or sample shall constitute a representation to the City and the Project Manager that the Contractor has either determined and Page 50 of 103 Packet Pg. 156 4.1.b verified all quantities, dimensions, field construction criteria, materials, catalog numbers, and similar data or assumes full responsibility for doing so, and that the Contractor has reviewed or coordinated each Shop Drawing or sample with the requirements of the Detailed Scope of Work and the Contract Documents. 6.15.5 Where a Shop Drawing or sample is required by the Job Order, no related Work shall be commenced until the submittal has been reviewed and approved by the Project Manager. 6.16 Continuing the Work 6.16.1 The Contractor shall carry on the Work and maintain the progress schedule during all disputes or disagreements with the City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as the Contractor and the City may otherwise agree in writing. 6.17 Warranties 6.17.1 All Work will be of good quality, free from fault or defect, and in strict accordance with the requirements of the Detailed Scope of Work. Any Work not conforming to the foregoing warranty, including unapproved or unauthorized substitutions, shall be considered defective. 6.17.2 All Subcontractors', Sub -Subcontractors', manufacturers', and Suppliers' warranties and guarantees, expressed or implied, respecting any part of the Work and all materials used therein shall be obtained and enforced by the Contractor for the benefit of the City without the necessity of separate transfer or assignment thereof. When directed by the Project Manager or required by the Contract Documents, the Contractor shall require that Subcontractors, Sub -Subcontractors, manufacturers, and Suppliers execute separate warranties and guarantees in writing directly to the City. Warranty provisions which purport to limit or alter the City's rights under the Contract Documents are null and void. 6.17.3 The Contractor warrants that title to all Work, materials, and equipment covered by a request for a progress payment or final payment will pass to the City either by incorporation in the Work or upon the receipt of payment by the Contractor, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances. The Contractor further warrants that no Work, materials, or equipment covered by a request for a progress payment or final payment will have been acquired by the Contractor, or by any other person performing Work at the project site or furnishing materials and equipment for the project, which Work, materials, or equipment are subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller of the same or is otherwise imposed by the Contractor or other person. Page 51 of 103 Packet Pg. 157 4.1.b 6.18 Not Used 6.19 Progress Schedule 6.19.1 Within ten (10) days after the effective date of the Notice to Proceed and prior to start of Work unless otherwise specified in the Job Order, the Contractor will prepare and submit a Progress Schedule in a form satisfactory to the Project Manager. Failure to submit a proposed Progress Schedule within the allowed time will not constitute grounds for an extension of the Job Order Completion Time. 6.19.2 The Progress Schedule will consist of a network analysis of the Critical Path Method (CPM) in arrow diagram form showing an activity description, cost, and calendar day duration for all significant design, manufacturing, construction, and installation activities. An activity list will be included with each copy of the Progress Schedule. 6.19.3 Within thirty (30) calendar days after receipt, the City will review, add comments, and return three (3) copies of the Progress Schedule to the Contractor. Review by the City of the proposed Progress Schedule does not constitute an approval of the Contractor's construction means, methods, sequences, or schedule. 6.19.4 The Progress Schedule shall outline the proposed operations, the interrelations of the various operations, and the order of performance in sufficient detail that progress of the Work can be evaluated accurately at any time during the performance of the Work. If abbreviations are used in the make-up of the Progress Schedule, a legend is to be provided to define all abbreviations. 6.19.5 If milestone completions are required by the Job Order, then those milestones are to be clearly defined on the Progress Schedule. 6.19.6 Should it become evident that the Contractor may fail to meet the scheduled dates as shown, the Project Manager may require the Contractor to submit a recovery schedule demonstrating its proposed plan to make up lag in scheduled progress and to ensure completion of the Work within the Job Order Completion Time. The Contractor, upon request, will be required at the Contractor's own expense to submit a revised Progress Schedule and to increase the Contractor's work force and working hours (second and third shifts) as required to bring the actual completion dates of the activities into conformance with the Progress Schedule. Further, the Contractor will submit a revised Progress Schedule at no cost to the City when, in the opinion of the Project Manager, the Contractor's sequence of Work varies significantly from that shown on the Progress Schedule. The City reserves the right to withhold progress payments until such time as an approved modified Progress Schedule in a form satisfactory to the Project Manager has been provided by the Contractor. Page 52 of 103 Packet Pg. 158 4.1.b 6.19.7 Failure of the Contractor to substantially comply with the requirements of this section may be considered grounds for a determination by the City that the Contractor is failing to prosecute the Work with such diligence as will ensure its completion within the time specified, and to take whatever action the City deems necessary and appropriate under the terms of the Contract Documents. 6.20 On -Site Documents 6.20.1 The Contractor is to maintain at the Project site, in good order for ready reference by the Project Manager, one (1) complete record copy of the Detailed Scope of Work, including changes in the Work, Field Orders, and all working drawings, Progress Schedule, and other approved submittals. 6.20.2 The Job Order record drawings are to be marked to truly record all changes made during construction, i.e., the "as -built" conditions. The Project's record drawings are to be updated on a weekly basis and before elements of the Work are covered or hidden from view. After the completion of the Work or portions of the Work and before requesting final inspection, the record copy of the Drawings will be given to the Project Manager. 6.21 Working Drawings, Product Data, Samples, and Other Submittals 6.21.1 The Contractor will review and submit all working drawings, product data, samples and other items required to be submitted to the City accompanied by a "shop drawing multi -transmittal" form. Such submittals will be given to the City in a complete and final form at least thirty (30) days prior to any Contractor need for review response or such other longer time that may be needed to allow time for detailed review by the City or others. The Contractor should allow sufficient time for the possibility of rejection of the submittal, needed revisions, and resubmittal review time. 6.21.2 By submitting working drawings, product data, and samples, the Contractor represents that it has determined and verified all materials, field measurements, and related field construction criteria are in accordance with the Detailed Scope of Work, and that the Contractor has checked and coordinated the information contained within the submittal with the requirements of the Detailed Scope of Work. The costs incurred by the City to review resubmitted working drawings, product data, and samples may be offset from any monies due the Contractor when the Contractor has failed to comply with this Subsection. 6.21.3 Review and approval by the City of the Contractor's working drawings, product data, or samples does not relieve the Contractor of responsibility for the accuracy of dimensions and details. Likewise, any review and comments do not relieve the contractor from complying with every requirement of the Job Order drawings and specifications unless the Contractor has called written attention to any deviations contained in the submittal and these deviations have been reviewed and accepted. By omission of any feature, capability, or part of any item submitted, the Page 53 of 103 Packet Pg. 159 4.1.b Contractor implies that these missing features, capabilities, or parts will be furnished exactly as required by the Job Order documents. Review and approval shall not constitute acceptance by the City of the correctness or adequacy of such submittals, nor shall it constitute a representation or warranty by the City that the drawings will satisfy the requirements of the Job Order. The review of a specific item shall not indicate approval of an assembly in which the item functions. The City's review or approval of a submittal shall not relieve the Contractor from responsibility for errors or omissions in the submittals. 6.21.4 Any Work delayed by reason of a properly rejected submittal is deemed to be entirely the Contractor's risk and will not be the basis for a claim by the Contractor for additional compensation or an extension of Job Order Completion Time. Drawings marked "subject to change" or the like will not be reviewed. The City is not required to review submittals that depend for their review on other submittals not yet submitted. 6.21.5 When resubmitting a submittal, the Contractor is to direct specific attention, in writing or on the resubmittal itself, to all revisions it has made. 6.21.6 No portion of the Work requiring submittal of a working drawing, product data, or sample is to be commenced until the submittal has been approved by the City as provided in these General Conditions. All portions of the Work involving submittals shall be performed in accordance with the approved submittals. 6.21.7 As -Built Drawings: If the Contractor is provided, or prepares, drawings as part of the Detailed Scope of Work, then as the Detailed Scope of Work progresses the Contractor shall keep a complete and accurate record of changes to, and deviations from, such drawings. The As -Built Drawings will be created in the same medium (paper, electronic) in which they were originally prepared. 6.22 Cutting, Fitting and Patching of Work 6.22.1 The Contractor will be responsible for all cutting, fitting, patching, or such other altering as may be required to complete the Work, or to make its several parts fit together properly. 6.22.2 The Contractor will not damage or endanger any portion of the Work, other work of the City, or that of any separate contractor(s) by cutting, fitting, patching or other altering of any work, or by excavation. The Contractor will not alter any of the work of the City or any separate contractor without written authorization from the City. 6.23 Inspection of the Work 6.23.1 The Project Manager or authorized representative shall have the right but not the obligation to inspect the Work, and to reject and refuse all labor and materials or methods of application, or any part thereof, which does not comply in kind, quality or material with the requirements of the Detailed Scope of Work. Any labor or material rejected, as not conforming to the Contract Documents shall be promptly removed. Labor and materials which do so conform will be furnished and Page 54 of 103 Packet Pg. 160 4.1.b delivered in place thereof; and if the Contractor refuses or neglects to remove such rejected material or to rebuild any such rejected Work, or otherwise correct the defects as the Project Manager directs, the City may obtain, use and employ materials, labor, tools, and implements to do the same and the expense thereof will be deducted from moneys which may otherwise be due or become due to the Contractor. 6.24 Uncovering of Work 6.24.1 If any portion of the Work should be covered prior to inspection called for by law or as required by the Contract Documents, the Contractor will, upon request of the Project Manager, uncover or remove the Work for inspection by the Project Manager or other governmental representatives, and replace the Work to the standard required by the Detailed Scope of Work, all at the Contractor's expense. 6.24.2 If any other portion of the Work has been covered or completed, the Contractor will, upon the request of the Project Manager, remove or uncover such Work for the Project Manager's observation. The Contractor will subsequently restore that portion of the Work to the standard required by the Detailed Scope of Work at no additional costs to the City. 6.25 Correction of Work 6.25.1 The Contractor will, at no additional expense to the City, promptly correct all Work which is defective or otherwise fails to conform to the requirements of the Detailed Scope of Work. Such Work is to be corrected even though it was previously inspected by the City, payment for it was included in a progress payment, whether or not it was completed, and whether or not it was observed before or after the date of Substantial Completion. 6.25.2 If, within one (1) year after Substantial Completion of the Work or within such longer period of time as may be prescribed by law or by the terms of any applicable additional warranty required by the Job Order, any of the Work is found to be defective or otherwise not in conformance with the Detailed Scope of Work, the Contractor will, at its cost, promptly correct such defective or non- conforming Work after receipt of written notice from the City. The obligation of this subsection shall survive termination of the Contract. 6.25.3 If the Contractor refuses or neglects to correct the defects as directed by the Project Manager, the City may obtain, use, and employ materials, labor, tools and implements to do the same and the expense thereof shall be deducted from moneys which may otherwise be due or become due to the Contractor or the City. If the Contractor fails to promptly correct defective or non -conforming Work, the City may correct it as provided in section 6.25, or may terminate this Contract. 6.25.4 Work corrected by the Contractor pursuant to section 6.25 will also be subject to the provisions of this section to the same extent as Work originally performed and for an additional one-year period commencing upon City acceptance of corrected work. Page 55 of 103 Packet Pg. 161 4.1.b 6.25.5 Nothing contained in this section is to be construed to establish a period of limitation with respect to any other obligation imposed on the Contractor by the Contract Documents or law, including the obligations imposed by section 6.17. The establishment of the time period of one year after the date of Final Completion or such longer period of time as may be prescribed by law or by the terms of any warranty required by the Job Order relates only to the specific obligation of the Contractor to correct defective or non -conforming Work, and bears no relationship to the time within which the Contractor's obligation to comply with the Job Order 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 obligations imposed on it by the Contract Documents or as otherwise may exist in law. 6.25.6 The City may, at its sole option, elect to retain defective or nonconforming Work In such case, the Contractor will reduce the Job Order Price in a reasonable amount to account for such defect or non-conformance. 6.26 Responsibility for Work 6.26.1 All Work performed under the Contract and all materials to be incorporated in the Work, whether in storage or on the Project site and whether under the care, custody and control of the Contractor, Subcontractor, or Sub -Subcontractor, shall be at the sole risk of loss and responsibility of the Contractor until Final Completion of the entire Project, except as may be limited by the Project Manager in writing for the period following Substantial Completion of the Work or designated portion thereof as provided in section 12.4. Damage from any cause to either permanent or temporary Work, utilities, materials, equipment, existing structures, the Project site, and other property owned by the City or others, shall be repaired by the Contractor to the satisfaction of the Project Manager at no additional cost to the City. At no time during the execution of this Contract shall the Contractor direct City staff or City agents to assist in the execution of the Work. 6.27 Hazardous Materials 6.27.1 The Contractor will comply with WAC 296-901 Global Harmonized System for Hazard Communication; and provide proper communications with personnel to prevent injury or illness. 6.27.2 The Contractor will take the following precautions to lessen the possibility of exposure to any hazardous material(s): • Notify all Subcontractors and/or suppliers of any Hazardous Materials that may be on site; • Label any Hazardous Materials brought on site as to contents, hazard warning, name and address of manufacturer; • Provide the following written information to the Project Manager prior to commencement of Work: 1. A list of Hazardous Materials to be used during the construction phase of the Page 56 of 103 Packet Pg. 162 4.1.b Work along with appropriate Material Safety Data Sheets. 2. A list of any Hazardous Materials that have been incorporated into the Project and will remain on site, along with the Material Safety Data Sheets. 6.27.3 The Contractor is not to cause or permit any Hazardous Material(s), as defined herein, to be brought upon, kept, or used in or about the job site except to the extent such Hazardous Materials are necessary for the prosecution of the Work or are required pursuant to the Contract Documents. Removal of such Hazardous Materials will be undertaken within twenty-four (24) hours following the City's demand for such removal. Removal will be undertaken by the Contractor at its sole cost and expense and will be performed in accordance with all applicable laws. Any damage to the Work, the job site or any adjacent property resulting from the improper use, or any discharge or release of Hazardous Materials, will be remedied by the Contractor at its sole cost and expense, and in compliance with all applicable laws. The Contractor will immediately notify the City of any release or discharge of any Hazardous Materials on the job site. The Contractor will be responsible for making any and all disclosures required under applicable "Community Right -to -Know" laws. The Contractor will not clean or service any tools, equipment, vehicles, materials, or other items in such a manner as to cause a violation of any laws or regulations relating to Hazardous Materials. All residue and waste materials resulting from any such cleaning or servicing will be collected and moved from the job site in accordance with all applicable laws and regulations. The Contractor will immediately notify the City of any citations, orders, or warnings issued to or received by the Contractor, or of which the Contractor otherwise becomes aware, which relate to any Hazardous Materials on the job site. Without limiting any other indemnification provisions pursuant to law or specified in this Contract, the Contractor will indemnify, defend at the Contractor's sole cost with legal counsel approved by the City and hold the City harmless from and against any and all such claims, demands, losses, damages, disbursements, liabilities, obligations, fines, penalties, costs, and expenses in removing or remediating the effect of any Hazardous Materials on, under, from or about the job site, arising out of or relating to, directly or indirectly, the Contractor's failure to comply with any of the requirements of Section 6.27. 6.28 Clean-up 6.28.1 At all times, and as may specifically be requested by the Project Manager, the Contractor will clean-up and remove all refuse resulting from the Work in order that the Project site remains free from an accumulation of construction debris. Upon failure to do so within twenty-four (24) hours after request by the Project Manager, such clean-up Work may be done by the City and the cost be charged to the Contractor and deducted from the Job Order Price. 6.28.2 Upon completion of the Work and before final inspection, the Contractor will clean the entire Work premises occupied or used in connection with the Work of all rubbish, surplus and discarded materials, false work, temporary structures, equipment, and debris. The entire Work premises shall be left in a clean, neat, and Page 57 of 103 Packet Pg. 163 4.1.b presentable condition. The Contractor will not remove warning, regulatory, or guide signs prior to Final Completion except as requested by the Project Manager. 6.29 Protection of Work During Suspension 6.29.1 In preparation for and during any suspension of Work as provided in section 13.1, the Contractor will take every precaution to prevent damage to, or deterioration of, the Work. Except as provided elsewhere in the Job Order, the Contractor will be responsible for all damage or deterioration to the Work during the period of suspension and shall, at its sole expense, correct or restore the Work to a condition acceptable to the Project Manager prior to resuming Work. A suspension of Work will not relieve the Contractor of any of its responsibilities under the Job Order. 6.30 Notice and Detailed Breakdown of Claim 6.30.1 Notice. If unforeseen conditions or changes in the Work arise for which the Contractor believes an equitable adjustment in time or money or any other adjustment in Job Order Completion Time or Job Order Price is or will be due, the Contractor will give the City immediate oral notice followed by written notice within seven (7) calendar days of such event. In all events, notice must be given and the Project Manager's direction received prior to performing the Work which the Contractor believes entitles it to such adjustments. Notice must identify in detail the basis for the claim. The date such written notice is received by the City shall define the start of time for any purpose regarding the claim. 6.30.2 Detailed Breakdown. Within thirty (30) calendar days of the City's receipt of the written notice above, the Contractor is to provide the City with a written breakdown of all of the elements and sub elements of the claim detailing the increase in the Job Order Completion Time and/or Job Order Price being sought. 6.30.3 If the Contractor fails to satisfy the requirements of this section, the Contractor will be deemed to have waived all rights to assert the claim against the City. 6.30.4 Unless otherwise directed by the City, the Contractor shall continue performance under this Contract while matters in dispute are being resolved. 6.30.5 For Federally Funded Job Orders, the requirements in this Section 6.30 are in addition to any claim requirements in the Federal Contract Clauses. 6.31 Prerequisite to Suit No legal action against the City may be filed on account of a claim or other liability arising out of or related to Work unless: a. The requirements of section 6.30 have been complied with; and b. The lawsuit is filed and served on the City within one hundred eighty (180) days of the date of Substantial Completion. The Contractor's failure to strictly comply with all requirements of this section shall be a complete bar to any claims, suits, or causes of action against the City. Page 58 of 103 Packet Pg. 164 4.1.b For Federally Funded Job Orders, the requirements in this Section 6.31 are in addition to any claim requirements in the Federal Contract Clauses. 6.32 Indemnification 6.32.1 The Contractor shall defend, indemnify and hold harmless the City and its agents from all liability, claims, damages, losses and expenses, whether direct, indirect or consequential (including, but not limited to, attorneys' and consultants' fees and other expenses of litigation or arbitration) arising out of the performance of the Work, which is caused, or alleged to be caused, in whole or in part, by any negligent act or omission of the Contractor (which for the purposes of this Article 6.32 shall include the Contractor and all of its Subcontractors, Sub - Subcontractors, Suppliers, agents, any other person directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable); provided, however, that where such liability, claim, damage, loss or expense arises from the concurrent negligence of (1) the City or its agents, and (2) the Contractor, it is expressly agreed that the Contractor's obligations of indemnity under this section shall be effective only to the extent of the Contractor's negligence. Such obligations shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any person or entity described in this section. This section shall not be construed so as to require the Contractor to defend, indemnify, or hold harmless the City from such claims, damages, losses or expenses caused by or resulting from the sole negligence of the City or its agents. 6.32.2 In any and all claims against the City or its agents, the indemnification obligation of Article 6.32.1 above shall not be limited in any way to the extent of insurance coverage described in Articles 5.3 and 5.4 of the General Conditions, or by articles, which apply to insurance coverage, of the Supplementary Conditions, or by any limitation on the amount or type of damages, compensation benefits payable by or for the Contractor under applicable workers' compensation, benefit, or disability laws (including, but not limited to the Industrial Insurance laws, Title 51 of the Revised Code of Washington). The Contractor expressly waives any immunity the Contractor might have had under such laws with respect to the indemnities set forth in these General Conditions, and, by agreeing to enter this Contract, acknowledges that the foregoing waiver has been mutually negotiated by the parties. 6.32.3 For federally funded job orders, the following clause applies: No Federal Government Obligations to Third Parties (1) The City of Edmonds and the Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the Recipient, Contractor or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying Contract. Page 59 of 103 Packet Pg. 165 4.1.b (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by the FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. END ARTICLE 6 Page 60 of 103 Packet Pg. 166 4.1.b ARTICLE 7 ADDITIONAL WORK AND WORK BY OTHERS 7.1 Additional Work 7.1.1 The City may perform additional work related to the Project by itself or let other direct contracts which may contain General Conditions similar to these. The Contractor shall afford the other contractors who are parties to such direct contracts (or the City, if the City is performing the additional work with City employees) reasonable opportunity for the introduction and storage of materials and equipment and the execution of work, and shall properly connect and coordinate its Work with theirs. 7.1.2 If any part of the Contractor's Work depends for proper execution or results upon the work of any such other contractor or the City, the Contractor shall inspect and promptly report to the Project Manager in writing any patent or apparent defects or deficiencies in such other work that render it unsuitable for such proper execution and results. The Contractor's failure so to report will constitute an acceptance of the other work as fit and proper for integration with the Contractor's Work except for latent or non -apparent defects and deficiencies in the other work. 7.1.3 The Contractor will do all Work required to make its several parts come together properly and integrate with such other work. The Contractor will not endanger any work of others by otherwise altering their work and will only alter their work with written consent of the Project Manager and the others whose work will be affected 7.1.4 If the performance of additional work by other contractors or the City was not noted in the Detailed Scope of Work, written notice will be given to the Contractor prior to starting any such additional work. The City will coordinate and schedule any such additional Work not noted in the Detailed Scope of Work to avoid interference or conflict with ongoing or scheduled work by the Contractor. END ARTICLE 7 Page 61 of 103 Packet Pg. 167 4.1.b ARTICLE 8 CITY'S RESPONSIBILITIES 8.1 Authority of the Project Manager 8.1.1 A Project Manager's authority is specific to the Job Order to which he or she is assigned. 8.1.2 The Contract Administrator will exercise all authority of the Project Manager with respect to any and all Job Orders at any time. 8.1.3 The Contract Administrator will be the City's representative and shall administer all Contract Documents. With respect to a Job Order, Final Acceptance as provided for in Article 12 will be accomplished by the Project Manager. The Project Manager and the Contract Administrator have the authority to enforce all obligations imposed on the Contractor by the Contract Documents. 8.1.4 The Work will be performed in accordance with the Detailed Scope of Work and the Contract Documents. The Project Manager has the authority but not the obligation to reject Work that is defective or does not otherwise conform to the Detailed Scope of Work. 8.1.5 The Project Manager is not responsible for and will not have control or charge of the means, methods, techniques, sequences, or procedures of Work, or for safety precautions or programs incidental thereto, these being the sole responsibility of the Contractor. The Project Manager will not be responsible for or have any control or charge of the acts or omissions of the Contractor, Subcontractor, Sub - Subcontractor, Suppliers, or any of their agents or employees, or any other persons performing a portion of the Work. 8.1.6 The City will issue all communications to the Contractor through the Project Manager or the Contract Administrator, as determined. In case of termination of the employment of the Project Manager or the Contract Administrator, the City will appoint a replacement(s). 8.2 Administration of the Contract 8.2.1 Nothing in this Article or elsewhere in the Contract Documents shall be construed as requiring the Project Manager, the Contract Administrator, the Inspector, a consultant, or other representative of the City to direct or advise the Contractor as to the method or manner of performing the Work. No approval or advice given by the City as to the method or manner of performing the Work or procuring materials to be furnished will constitute a representation or warranty by the City that the result of such method or manner will conform to the Detailed Scope of Work or achieve the desired results. Such approval or advice will neither relieve the Contractor of any of its obligations under the Contract nor create any liability to the City on account of approval or advice. The Project Manager or the Inspectors may call to the attention of the Contractor defective Work or Work that does not conform otherwise to the Detailed Scope of Work. However, the failure of the Page 62 of 103 Packet Pg. 168 4.1.b Project Manager or the Inspectors to so inform the Contractor will not constitute approval or acceptance of such defective or non -conforming Work. 8.2.2 The presence of the Project Manager or the Inspector during the progress of any Work does not relieve the Contractor from responsibility for defects in the Work, nor does it bind the City in determining Final Completion of the Work. 8.2.3 Work done or material furnished which at any time is found not to conform to the requirements of the Contract Documents shall be at the Contractor's risk and expense and shall furnish no basis for an increase in the Contract Sum or Contract Time, even though the Project Manager or the Inspector fails to reject such Work or material. 8.3 City's Right to Carry Out Other Work The City reserves the right at all times to perform or cause to be performed other and additional work on or near the site of the Project. Should such other or additional work or City operations be either underway or subsequently undertaken at or near the Project, the the Contractor will coordinate its activities with those of all other work forces and conduct its activities to avoid or minimize any conflict between the operations of the Contractor and those persons performing the other or additional work or operations. 8.4 Officers and Employees of the City Have No Personal Liability Neither the elected officials, Project Manager, Contract Administrator, Inspector, nor any other officer, employee or agent of the City shall be personally liable to the Contractor for any of their acts or omissions arising out of the Project. 8.5 Gratuities The Contractor will not extend any loan, gratuity, or gift of money or services in any form whatsoever to any employee or officer of the City or City consultant, nor will the Contractor rent or purchase any equipment, materials, or services from any employee or officer of the City or any City consultant. 8.6 Service of Notices on the Contractor Any written notice required under the Contract Documents to be given to the Contractor may, at the option of the City, be served on the Contractor by personal service, electronic or facsimile transmission, mail, or private courier delivery to the last address provided in writing to the City Project Manager and the Contract Administrator. For the purpose of measuring time in determining the parties' rights and obligations with respect to notice given pursuant to the Job Order and Contract Documents (other than that given by personal service), notice is conclusively presumed to be received by the Contractor on the next business day following the City's electronic or facsimile transmittal placing the notice in the U.S. mail or delivering it to the private courier. END ARTICLE 8 Page 63 of 103 Packet Pg. 169 4.1.b ARTICLE 9 PROJECT MANAGER'S STATUS DURING WORK 9.1 City's Representative The Project Manager will be the City's representative for a Job Order. The Project Manager and the City's Contract Administrator will be identified to the Contractor prior to commencement of the Work. 9.2 Clarifications and Interpretations The Project Manager will issue with reasonable promptness such written clarifications or interpretations of the Detailed Scope of Work in the form of Drawings or otherwise as the Project Manager may determine necessary, which will be consistent with or reasonably inferable from the overall intent of the Detailed Scope of Work. If the Contractor believes that a written clarification or interpretation justifies an increase in the Job Order Price or Job Order Completion Time, the Contractor may make a claim as provided in Article 10. 9.3 Rejecting Defective Work The Project Manager will have authority to disapprove or reject Work which is defective, and will also have authority to require special inspection or testing of the Work, whether or not the Work is fabricated, installed or completed. 9.4 Not Used 9.5 Decisions on Disagreements 9.5.1 The Contract Administrator will be the initial interpreter of the Contract Documents while the Project Manager will be the initial interpreter of the requirements of the Job Order and judge of the acceptability of the Work. Additional disputes relating to the acceptability of the Work or the interpretation of the requirements of the Detailed Scope of Work or Contract Documents pertaining to the execution and progress of the Work shall be referred to the Contract Administrator in writing with a request for a formal decision in accordance with this section, which the Contract Administrator will render in writing within a reasonable time. Written notice of each such dispute shall be delivered by the claimant to the Contract Administrator within fifteen (15) calendar days of the occurrence after the event giving rise thereto, and written supporting data will be submitted to the Contract Administrator within forty-five (45) calendar days of such occurrence unless the Contract Administrator allows an additional period of time to ascertain more accurate data. 9.5.2 The rendering of a decision by the Contract Administrator pursuant to section 9.5.1 with respect to any such dispute (except any which have been waived by the making or acceptance of final payment as provided in section 12.8) will be a condition precedent to any exercise by the City or the Contractor of such rights or remedies as either may otherwise have under the Contract Documents or at law in respect of any such dispute. Page 64 of 103 Packet Pg. 170 4.1.b 9.6 Limitations on Project Manager's Responsibilities 9.6.1 Neither the Project Manager's authority to act under this Article 9 or elsewhere in the Contract Documents nor any decision made by the Project Manager in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of the Project Manager to the Contractor, any Subcontractor, any manufacturer, fabricator, supplier or distributor, or any of their agents or employees or any other person performing any of the Work. 9.6.2 Whenever in the Contract Documents the terms "as ordered", "as directed", "as required", "as allowed" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper" or "satisfactory" or adjectives of like effect or import are used, to describe a requirement, direction, review or judgment of the Project Manager as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate the Work for compliance with the Contract Documents unless there is a specific statement indicating otherwise. The use of any such term or adjective never indicates that the Project Manager shall have authority to supervise or direct performance of the Work or authority to undertake responsibility contrary to the provisions of Sections 9.8.2 or 9.8.3. 9.6.3 The Project Manager will not be responsible for the Contractor's means, methods, techniques, sequences or procedures of Work, or the safety precautions and programs incident thereto, and the Project Manager will not be responsible for the Contractor's failure to perform the Work in accordance with the Detailed Scope of Work. 9.6.4 The Project Manager will not be responsible for the acts or omissions of the Contractor or of any Subcontractor, or of the agents or employees of the Contractor or any Subcontractor, or of any other persons at the site or otherwise performing any of the Work. 9.7 Not Used 9.8 Requests for Instruction 9.8.1 Due to the highly variable nature of the materials and facilities encountered within the site, the Contractor will require instructions from the Project Manager as new areas are uncovered or exposed by the Work in progress. In the event that the Contractor requests such instructions in order to comply with the Contract requirements, the Project Manager will provide the instructions in writing, within forty- eight (48) hours. During the 48-hour period, no additional payments will be made to the Contractor for equipment, labor, or any other item related to the request for instructions. 9.8.2 In addition, the requirements of the Detailed Scope of Work may be supplemented and minor variations and deviations in the work may be authorized, in one or more of the following ways: Page 65 of 103 Packet Pg. 171 4.1.b a. The Project Manager may authorize minor variations in the work from the requirements of the Detailed Scope of Work which do not involve an adjustment in the Job Order Price or Job Order Completion Time and are consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order and will be binding on the City, and also on the Contractor who shall perform the Work involved promptly. If the Contractor believes that a Field Order justifies an increase in the Job Order Price or an extension of the Job Order Completion Time and the parties are unable to agree as to the amount or extent thereof, the Contractor may make a claim as provided in Article 10. b. The Project Manager's approval of a Shop Drawing or sample. c. The Project Manager's written interpretation or clarification. END ARTICLE 9 Page 66 of 103 Packet Pg. 172 4.1.b ARTICLE 10 CHANGES IN THE WORK 10.1 Changes to Contract Documents Non -Job Order Specific Contract Documents. Modification of the following Contract Documents after the effective date of the Contract requires a Contract amendment signed by an authorized representative of the Contractor and an authorized representative of the City: Contract, General Conditions, Supplementary Conditions, RFP and addenda thereto, Contractor's Proposal, and the Construction Task Catalog°. Job -Order Specific Contract Documents. Modification of the following Contract Documents and requirements after the effective date of the Contract are to be signed by the Contract Administrator and the Project Manager: all Job Orders and Job -Order specific documents, including but not limited to the Detailed Scope of Work, Job Order Completion Time, Request for Proposal, Price Proposal, Job Order Proposal, Notice to Proceed, submittals, record documents, and all required close- out documentation and warranties. Any modification that increases/decreases the Job Order Price must be signed by the Contract Administrator. 10.2 Change Order and Supplemental Job Order Changes to the Contract may be accomplished after execution of the Contract and without invalidating the Contract. The City, without invalidating the Job Order, may order changes in the Work by altering, adding to, or deducting from the Work, by issuing a Supplemental Job Order. All Supplemental Job Orders shall be developed and priced in accordance with the Procedures for Developing All Job Orders. Credits for Pre -priced and Non-Prepriced Tasks shall be calculated at the pre-set Unit Prices and multiplied by the appropriate Adjustment Factors. The result is that a credit for Tasks that have been deleted from the Detailed Scope of Work will be given at 100% of the value at which they were included in the original Job Order Price Proposal. All such Work shall be executed under the applicable conditions of the Contract Documents. The Project Manager may authorize minor changes in the Work that do not change the Job Order price, which are consistent with the overall intent of the Detailed Scope of Work. These may be accomplished by a Field Order and shall be binding on the City, and also on the Contractor who shall perform the change promptly. Additional Work performed without authorization of a Supplemental Job Order will not entitle the Contractor to an increase in the Job Order Price or an extension of the Job Order Completion Time. Page 67 of 103 Packet Pg. 173 4.1.b The Contractor may request a Supplemental Job Order to reflect modifications to the Work resulting from unforeseen site conditions. If the Project Manager determines that such unforeseen site conditions require a modification of the Work, the Project Manager will prepare a Supplemental Job Order for execution by the Contract Administrator incorporating such modifications as necessary to proceed with and complete the Work. The Contractor shall be responsible for reallocation of its work force when work cannot be continued in an area due to unforeseen conditions. In no event will the City reimburse the Contractor for charges caused by delays unless prior written authorization is provided by the City. 10.3 Job Order Price The Job Order Price constitutes the total compensation subject to authorized adjustments payable to the Contractor for performing the Detailed Scope of work. All duties, responsibilities and obligations assigned to or undertaken by the Contractor shall be at its expense without change in the Job Order Price. Contractor Mobilization consists of preconstruction expenses and costs of preparatory work and operations performed by the Contractor that are not defined as a part of a payment item and are considered to be part of the Job Order Price. 10.4 Job Order Completion Time Any extension of Job Order Completion Time must have the written approval of the City and must conform to the procedures set forth herein. In event of delay in completion of the Work caused by acts of God, or public enemy, or another contractor in the performance of a contract with the City, or caused by fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or weather, the sole and exclusive remedy of the Contractor will be an equitable extension of time allowed for completion. Reasonable Delays. The Contractor should anticipate that some reasonable delays, including those caused by normal weather patterns, may occur. The Contractor shall not be entitled to any compensation, damages, or extension of the Contract Time for such reasonable delays. Excusable Delays. The Job Order Completion Time may be extended without compensation by the City for a period equivalent to the time that the Contractor was delayed in the Work by one or more of the following causes, beyond the control of the City and the Contractor, occurring during the performance of the Work: a. Fire or other casualty for which the Contractor is not at fault or otherwise responsible; b. Strike, riot, war, or civil disorder; c. Suspension of Work due to unusual and severe weather; d. Suspension of Work due to other unsuitable conditions in accordance with Article 13. Page 68 of 103 Packet Pg. 174 4.1.b Unreasonable Delays. Extensions of Job Order Completion Time, if any, will be determined by the Project Manager. Time extensions will be allowed only to the extent that completion of the Work is unreasonably delayed through no fault of the Contractor, which must in all cases unless otherwise determined by the Project Manager be substantiated by impact to the critical path on the Progress Schedule. Any extension of the Job Order Completion Time by the City will be set forth in writing, which shall specify the calendar days by which the Contract Time is to be increased. No extension of time shall be allowed for any claimed delay which is caused by or results from concurrent delay or the fault, negligence, or collusion of the Contractor or its Subcontractors, suppliers, or any others, or any of their acts or failure to act or to timely perform the Work according to the Contract. Failure to make timely submittals to the City, procure materials or workmen, or perform the Work in accordance with the requirements of the Detailed Scope of Work, or to adequately plan for such functions will not be an adequate reason for an extension of the Job Order Completion Time. In no event shall the Contractor be entitled to loss or damage, including a change in Job Order Price for any delay in the Contractor's prosecution of the Work, even if such delay is caused by the City, except to the extent such acts or omissions of the City result in a delay to the Project's critical path, in which case the Contractor may receive an adjustment to the Job Order Price and/or an extension of the Job Order Completion Time. Any request for such cost shall be established and documented by the Contractor in detail to the satisfaction of the Project Manager. If the Contractor fails to fully comply with section 6.30, its claim for an extension of the Job Order Completion Time or adjustment to the Job Order Price on account of such claimed delay is waived. The Job Order Completion Time may only be changed by the City. Any request for an extension in the Job Order Completion Time shall be based on written notice delivered to the Project Manager and the Contract Administrator within fifteen (15) days of the occurrence of the event giving rise to the request. All requests for adjustment in the Job Order Completion Time shall be determined by the Contract Administrator if the Project Manager and the Contractor cannot otherwise agree. Any change in the Job Order Completion Time resulting from any such request shall be incorporated in a Field Order. The Job Order Completion Time will be extended in an amount equal to time lost due to delays beyond the control of the Contractor if a request is made therefore as provided in this Article 10. All time limits stated in the Job Orders and the Contract Documents are of the essence of the Contract. The provisions of this Article 10 shall not exclude recovery for damages including compensation for additional professional services for delay by either party. END ARTICLE 10 Page 69 of 103 Packet Pg. 175 4.1.b ARTICLE 11 WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 11.1 Warranty and Guarantee The Contractor warrants and guarantees to the City that all Work will be in accordance with the Detailed Scope of Work and will not be defective. Prompt notice of all defects shall be given to the Contractor. All defective Work, whether or not in place, may be rejected, corrected or accepted as provided in this Article 11. 11.2 Access to Work The Project Manager and the Project Manager's representatives, other representatives of the City, testing agencies and governmental agencies with jurisdictional interests will have access to the Work at reasonable times for their observation, inspection and testing. The Contractor shall provide proper and safe conditions for such access. 11.3 Tests and Inspections 11.3.1 The Contractor will give the Project Manager a minimum of seven (7) days' notice of readiness of the Work for all required inspections, tests or approvals. 11.3.2 If any law, ordinance, rule, regulation, code, or order of any public body having jurisdiction requires any Work or part thereof to specifically be inspected, tested or approved, the Contractor will assume full responsibility, pay all costs in connection, and furnish the Project Manager with the required certificates of inspection, testing or approval. The Contractor will also be responsible for and pay all costs in connection with any inspection or testing required in connection with the City's or the Project Manager's acceptance of a manufacturer, fabricator, supplier or distributor of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to the Contractor's purchase thereof for incorporation in the Work. The cost of all other inspections, tests and approvals required by the Contract Documents shall be paid by the City unless otherwise specified. 11.3.3 All inspections, tests or approvals other than those required by law, ordinance, rule, regulation, code or order of any public body having jurisdiction will be performed by organizations acceptable to the City and the Contractor or by the Project Manager if so specified. 11.3.4 If any Work that is to be inspected, tested or approved is covered without written concurrence of the Project Manager, it must, if requested by the Project Manager, be uncovered for observation. Such uncovering shall be at the Contractor's expense unless the Page 70 of 103 Packet Pg. 176 4.1.b Contractor has given the Project Manager timely notice of the Contractor's intention to cover such Work and the Project Manager has not acted with reasonable promptness in response to such notice. 11.3.5 Neither observations by the Project Manager nor inspections, tests or approvals by others will relieve the Contractor from its obligations to perform the Work in accordance with the Detailed Scope of Work. 11.4 City May Stop the Work If the Work is defective, or the Contractor fails to supply sufficient skilled workmen or suitable materials or equipment, the City may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the City to stop the Work will not give rise to any duty on the part of the City to exercise this right for the benefit of the Contractor or any other party. 11.5 Correction or Removal of Defective Work If required by the Project Manager, the Contractor shall promptly, without cost to the City and as specified by the Project Manager, either correct any defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by the Project Manager, remove it from the site and replace it with non -defective Work. 11.6 Acceptance of Defective Work If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. In such case, if acceptance occurs prior to the Project Manager's recommendation of final payment, a Supplemental Job Order shall be issued incorporating the necessary revisions in the Detailed Scope of Work, including appropriate reduction in the Price; or, if the acceptance occurs after such recommendation, an appropriate amount shall be paid by the Contractor to the City. 11.7 City May Correct Defective Work If the Contractor fails within a reasonable time after written notice of the Project Manager to proceed to correct and to correct defective Work or to remove and replace rejected Work as required by the Project Manager in accordance with section 11.5, or if the Contractor fails to perform the Work in accordance with the Contract Documents (including any requirements of the progress schedule), the City may, after seven (7) days' written notice to the Contractor, correct and remedy any such deficiency. In exercising its rights under this section the City shall proceed expeditiously. To the extent necessary to complete corrective and remedial action, the City may exclude the Contractor from all or part of the site, take possession of all or part of the Work, and suspend the Contractor's services related thereto, take possession of the Contractor's tools, appliances, equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere. The Page 71 of 103 Packet Pg. 177 4.1.b Contractor shall allow the City and the City's representatives, agents and employees such access to the site as may be necessary to enable the City to exercise its rights under this Section. All direct and indirect costs of the City in exercising such rights shall be charged against the Contractor in an amount verified by the Project Manager, and a Supplemental Job Order shall be issued incorporating the necessary revisions in the Detailed Scope of Work and a reduction in the Job Order Price. Such direct and indirect costs shall include, in particular but without limitation, compensation for additional professional services required and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or replacement of the Contractor's defective Work. The Contractor shall not be allowed an extension of the Job Order Completion Time because of any delay in performance of the Work attributable to the exercise by the City of the City's rights hereunder. END ARTICLE 11 Page 72 of 103 Packet Pg. 178 4.1.b ARTICLE 12 PAYMENTS TO CONTRACTOR AND COMPLETION 12.1 Application for Progress Payment Unless otherwise specified in the General Requirements, the Contractor will submit Applications for Payment & Invoices to the Contract Administrator for review and approval following completion of each Job Order. Under no circumstances will the City pay Job Order Invoices more often than once a month. The Payment Application shall be accompanied by such supporting documentation as is required by the Contract Documents and also as the Contract Administrator reasonably requires. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the site or at another location agreed to in writing, the Invoice shall also be accompanied by such data, satisfactory to the City, as will establish the City's title to the material and equipment and protect the City's interest therein, including applicable insurance. 12.2 Contractor's Warranty of Title The Contractor warrants and guarantees that title to all Work, materials and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to the City at the time of payment free and clear of all liens, claims, security interests and encumbrances (hereafter in these General Conditions referred to as "Liens"). 12.3 Review of Applications for Progress Payment 12.3.1 The Contractor Administrator and the Project Manager will, within ten (10) days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Invoice for payment, or return the Invoice to the Contractor indicating in writing reasons for refusing to recommend payment. In the latter case, the Contractor may make the necessary corrections and resubmit the Application. Within thirty (30) days of receipt of a correct Invoice and with the Contract Administrator's and the Project Manager's recommendations, pay the Contractor the invoiced amount. 12.3.2 Not Used 12.3.3 Not Used 12.3.4 The Project Manager may refuse to recommend the whole or any part of any payment if, in his/her opinion, it would be incorrect to make such representations to the City. He/she may also refuse to recommend any such payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment previously recommended to such extent as may be necessary in the Project Manager's opinion to protect the City from loss because: a. the Work is defective, or completed Work has been damaged requiring correction or replacement; b. written claims have been made against the City or Liens have been filed in connection with the Work; Page 73 of 103 Packet Pg. 179 4.1.b c. the Job Order Price has been reduced because of Supplemental Job Order(s); d. The City has been required to correct defective Work or complete the Work in accordance with section 11.7; e. of the Contractor's unsatisfactory prosecution of the Work in accordance with the Detailed Scope of Work; f. the Contractor's failure to make payment to a Subcontractor, or for labor, materials or equipment; or g. of quantity adjustment or correction. 12.4 Substantial Completion 12.4.1 When the Contractor considers the entire Work ready for its intended use, the Contractor will certify in writing to the Project Manager that the entire Work is substantially complete and request that the Project Manager issue a Certificate of Substantial Completion. Within a reasonable time thereafter, the Contractor and the Project Manager will make an inspection of the Work to determine the status of completion. If the Project Manager does not consider the Work substantially complete, the Project Manager will notify the Contractor in writing giving his/her reasons. If the Project Manager considers the Work substantially complete, the Project Manager will prepare a Certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative "punch list" of items to be completed or corrected before final payment. A copy of the Certificate of Substantial Completion shall be forwarded to the Contract Administrator. 12.4.2 The City has the right to exclude the Contractor from the Work after the date of Substantial Completion, but will allow the Contractor reasonable access to complete or correct items on the punch list. 12.5 Partial Utilization Use by the City of completed portions of the Work may be accomplished prior to Substantial Completion of all the Work subject to the following: a. The City at any time may request in writing to the Contractor to permit the City to use any part of the Work which is believed to be substantially complete and can be used without significant interference with the other parts of the Work. If the Contractor agrees, the Contractor will certify to the City and the Project Manager that said part of the Work is substantially complete and request the Project Manager to issue a Certificate of Substantial Completion for that part of the Work. Within a reasonable time the City, Contractor and Project Manager will make an inspection of that part of the Work to determine its status of completion. If the Project Manager does not consider that part of the Work to be substantially complete, the Project Manager will notify the Contractor in writing giving his/her reasons. If the Project Manager considers that part of the Work to be substantially complete, the Project Manager will execute and deliver to the Contractor a certificate to that effect, fixing the date of Substantial Completion as to that part of the Work, attaching a tentative list (punch list) of items to be completed or corrected before final payment. The City will have the right to exclude the Contractor from any part of the Work which the Project Manager has so certified to Page 74 of 103 Packet Pg. 180 4.1.b be substantially complete, but will allow the Contractor reasonable access to complete or correct items on the tentative list. b. In lieu of the issuance of a Certificate of Substantial Completion as to part of the Work, the City may take over operation of a facility constituting part of the Work whether or not it is substantially complete if such facility is functionally and separately usable; provided that prior to any such takeover, the City and the Contractor have agreed as to the division of responsibilities between the City and the Contractor for security, operation, safety, maintenance, correction period, heat, utilities and insurance with respect to such facility. 12.6 Final Inspection Upon written notice from Contractor that the Work is complete, the Project Manager will make a final inspection with the Contractor and will notify the Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. The Contractor shall immediately take such measures as are necessary to remedy such deficiencies. 12.7 Final Application for Payment At the time of submission of its Final Application for Payment, the Contractor shall, unless otherwise determined by the Contract Administrator, provide the following information: 12.7.1 an affidavit for the Contractor confirming that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect the City's interests; 12.7.2 a general release executed by the Contractor in a form acceptable to the City waiving, upon receipt of final payment by the Contractor, all claims, except those claims previously made in writing to the City and remaining unsettled at the time of final payment; 12.7.3 all operating manuals, warranties and other deliverables required by the Contract Documents; 12.7.4 if applicable, certified payrolls from the Contractor and all Subcontractors; 12.7.5 "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" from the Contractor and each Subcontractor filed with the City and the Department of Labor and Industries; and 12.7.6 Certification of Use or Deferred Sales Tax Paid or both, and if required by the City, other data establishing payment or satisfaction of obligations, including, but not limited to, receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the City. If a Subcontractor refuses to furnish a release or waiver required by the City, the Contractor may furnish a bond satisfactory to the City to indemnify the City against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the City all money that the City may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. Page 75 of 103 Packet Pg. 181 4.1.b 12.8 Final Payment and Acceptance 12.8.1 If, on the basis of the Project Manager's observation of the Work during construction and final inspection, and the Contract Administrator and Project Manager's review of the final Application for Payment and accompanying documentation, the Project Manager is satisfied that the Work has been completed and the Contractor has fulfilled all of its obligations with regard to construction of the Project, the Project Manager will indicate approval of final payment by signing such invoice. The Contract Administrator will sign the final invoice as well and submit for final payment. The Project Manager will give written notice to the Contractor that the Work is acceptable subject to the provisions of Section 12.9. Otherwise, the Contract Administrator will return the Payment Application to the Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case the Contractor shall make the necessary corrections and resubmit the Application. If the Application and accompanying documentation are appropriate as to form and substance, the City will, within thirty (30) days after receipt, pay the Contractor. 12.8.2 Payment will be made to the Contractor only for those portions of the work that have been fully completed and accepted. 12.9 Contractor's Continuing Obligation The Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither recommendation of any progress or final payment by Project Manager, nor the issuance of a Certificate of Substantial Completion, nor any payment by the City to the Contractor under the Contract Documents, nor any use or occupancy of the Work or any part thereof by the City, nor any act of acceptance by the City nor any failure to do so, nor the issuance of a notice of acceptability by the Project Manager pursuant to section 12.8, nor any correction of Defective Work by the City shall constitute an acceptance of Work not in accordance with the Contract Documents or a release of the Contractor's obligation to perform the Work in accordance with the Contract Documents. 12.10 Waiver of Claims The making and acceptance of final payment shall constitute the Contractor's waiver of all claims by the Contractor against the City other than those previously made in writing and still unsettled. END ARTICLE 12 Page 76 of 103 Packet Pg. 182 4.1.b ARTICLE 13 SUSPENSION OF WORK AND TERMINATION 13.1 Suspend the Work The City may, at any time and without cause, suspend the Work or any portion for a period of not more than thirty (30) calendar days with written notice to the Contractor. Notice will state the date when work will resume. The Contractor will resume the work on said date. The Contractor will be allowed an increase in the Job Order price or an extension of the Job Order completion time or both directly attributable to any suspension if it makes a claim as provided in Article 10 unless suspension of the Work is mutually agreed upon by the City and the Contractor. 13.2 City May Terminate 13.2.1 Upon the occurrence of any one or more of the following events of default: a. Contractor is adjudged bankrupt or insolvent; b. Contractor makes a general assignment for the benefit of creditors; c. a trustee or receiver is appointed for Contractor or for any of Contractor's property; d. Contractor files a petition to take advantage of any debtor's act, or to reorganize under the bankruptcy or similar laws; e. Contractor repeatedly fails to supply sufficient skilled workmen or suitable materials or equipment; f. Contractor repeatedly fails to make prompt payments to Subcontractor or for labor, materials or equipment; g. Contractor disregards laws, ordinances, rules, regulations or orders of any public body having jurisdiction; h. Contractor disregards the authority of Project Manager or Contract Administrator; i. Contractor refuses or fails to prosecute Job Orders or any separable part thereof, with the diligence that will ensure its completion within the Job Order Completion Time or any extension or fails to complete the work within this time; or j. Contractor otherwise violates in any substantial way any provisions of the Contract Documents, this includes without limitation breach of applicable Federal Contract Clauses in a Federally Funded Job Order. The City may, after giving the Contractor and its Surety sixty (60) days' written notice specifying the event of default, terminate the services of the Contractor, exclude the Contractor from the site, and take possession of the Work and of all the Contractor's tools, appliances, equipment and machinery at the site and use the same to the full extent they could be used by the Contractor (without liability to the Contractor for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere, and finish the Work as the City may deem expedient. The City may complete the Work itself or with other contractors. The Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the Job Order Price exceeds the direct and indirect costs of completing Page 77 of 103 Packet Pg. 183 4.1.b the Work, including compensation for additional professional services, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor or its Surety shall pay the difference to the City. The Contractor and its sureties shall be liable for any other damage to the City resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. 13.2.2 Where the Contractor's services have been so terminated by the City, the termination will not affect any rights of the City against the Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due the Contractor by the City will not release the Contractor from liability. 13.2.3 Upon seven (7) days written notice to the Contractor, the City may without cause and without prejudice to any other right or remedy elect to abandon the Work and terminate the Contract. The City will have all remedies in law and equity, including the right to specific performance (or injunction or other appropriate equitable remedy), without further assistance, and the rights to termination or suspension as provided herein. In such case, the Contractor shall be paid for all work completed and accepted as complete by the Project Manager. 13.2.4 Inasmuch as the Contractor can be adequately compensated by money damages for any breach of this Contract, which may be committed by the City, the Contractor expressly agrees that no default, act or omission of the City shall constitute a material breach of this Contract, entitling the Contractor to cancel or rescind the Contract (unless the City directs the Contractor to do so) or to suspend or abandon performance. 13.2.5 If there is a dispute regarding a Federally Funded Job Order, the parties will use the dispute resolution in the Federal Contract Clauses, if any. 13.2.6 Unless otherwise directed by the City, the Contractor shall continue performance under this Contract while matters in dispute are being resolved 13.3 Termination for Convenience 13.3.1 In addition to the City's other termination rights, the City may terminate the Contract for convenience. Upon ten (10) days' written notice to the Contractor, the City may, for its convenience and without cause, elect to terminate this Contract or any portion of this Contract. 13.3.2 If the Work or any portion thereof is terminated for convenience, the Contractor shall, subject to the limitation set forth in 13.3.3 below, be entitled to be paid that portion of the Job Order Price that corresponds to the percentage of work that is complete and accepted, in accordance with the Contract Documents, but shall not be entitled to any other costs or damages whatsoever including without limitation fee or profit on terminated Work. If the Contractor has any property in its possession belonging to the City, the Contractor will account for the same, and dispose of it in the manner the City directs. 13.3.3 The total sum to be paid to the Contractor under this Section 13.3 shall not exceed the Job Order Price(s) outstanding at the time of termination, as reduced by the amount of Page 78 of 103 Packet Pg. 184 4.1.b payments otherwise made, the price of Work not terminated, and as otherwise permitted by this Contract. The amounts payable to the Contractor shall exclude the fair value of property not under the City's control which is destroyed, lost, stolen or damaged so as to become undeliverable to the City. 13.3.4 Any claim, request for equitable adjustment or other demand for extra compensation or time extension by the Contractor arising from or related to acts, events, occurrences or omissions prior to the effective date of the convenience termination shall continue to be subject to and resolved in accordance with the rules (contractual or legal, express or implied) in effect prior to the termination. The convenience termination will not convert this Contract into a cost reimbursement contract. 13.4 Minimum Contract Value Not Achieved If, in the Base Term, the City, at no fault of the Job Order Contractor, fails to issue Job Orders totaling at least the Minimum Contract Value, then the Contractor's sole remedy is as set forth in RCW 39.10.440(7). 13.5 Contractor May Stop Work or Terminate If, through no act or fault of the Contractor or its subcontractors, the Work is suspended for a period of more than sixty (60) days by the City or under an order of court or other public authority, then the Contractor may, upon seven (7) days' written notice to the City, terminate the Contract and recover from the City payment for all Work completed and accepted. ARTICLE 14 NOT USED END OF ARTICLE 13 END OF ARTICLE 14 Page 79 of 103 Packet Pg. 185 4.1.b ARTICLE 15 MISCELLANEOUS 15.1 General Requirements 15.1.1 Should the City or the Contractor suffer injury or damage to its person or property because of any error, omission or act of the other party or of any of the other party's employees or agents or others for whose acts the other party is legally liable, claim shall be made in writing to the other party within a reasonable time of the first observance of such injury or damage. 15.1.2 The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon Contractor by sections 11.1, and 13.2 and all of the rights and remedies available to City thereunder, shall be in addition to, and shall not be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by law or contract, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this section shall be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. All representations, warranties and guarantees made in the Contract Documents shall survive final payment and termination or completion of this Contract. 15.2 Giving Notice Whenever any provision of the Contract Documents requires the giving of written notice it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 15.3 Computation of Time When any period of time is referred to in the Contract Documents by days, it shall be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation. 15.4 Non -Discrimination The Contractor shall not discriminate on the grounds of race, color, sex or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor shall not participate either directly or indirectly in such discrimination, including discrimination in employment practices. In the event of the Contractor's noncompliance with the nondiscrimination provisions of the Contract Documents or applicable law, the City may impose such sanctions as it, or the City's funding agencies, may determine to be appropriate, including, but not limited to: (a) withholding of payments to the Contractor until the Contractor complies, and (b) termination or suspension of the Contract, in whole or in part. Page 80 of 103 Packet Pg. 186 4.1.b 15.5 Contractor Selection 15.5.1 The City may award an individual Job Order to any selected Contractor. Selection of the Contractor and award of the Job Order will be in compliance with established City procedures and based on one or more of the following criteria: 15.5.2 Rotational selection among all Contractors, unless otherwise determined by the City. 15.5.3 Evaluation of past and current performance on Job Orders of a similar nature and type of work, project size, construction management challenges, schedule performance, design management requirements, etc. 15.5.4 Balancing Job Order volume among Contractors. 15.5.5 Price, as determined by the Adjustment Factors of the Contractors. 15.5.6 Limitations posed by bonding capacity of the Contractors. 15.5.7 Other appropriate criteria as deemed in the best interest of the City. 15.6 Contractor's Personnel 15.6.1 The Contractor shall assign a full-time person as its representative for this Contract. This person shall be acceptable to the City and shall have a cell phone at which he or she can be reached at all times. 15.6.2 The Contractor shall have an office within the City of Edmonds or within close proximity (no more than 20 miles) of the City of Edmonds. 15.6.3 The Contractor shall also have at all times an Office Manager and a Superintendent assigned to this Contract. Additional staff will be provided depending on the volume of work. For each Job Order issued, the Contractor shall identify the Superintendent responsible for that Job Order. The Superintendent shall be reachable 24 hours a day, seven days a week. If the named Superintendent is not available because of illness or vacation or the like, the Contractor shall notify the City of a substitute Superintendent. At all times, the Contractor shall provide at least one Superintendent for every four Job Orders. Whenever, in the sole discretion of the City, the Contractor is not providing a sufficient level of supervision, the City may direct the Contractor to increase the level of supervision for any or all projects, including but not limited to the right to direct the Contractor to assign a full time, dedicated Superintendent for any project; submit daily management, inspection, activity, and planning reports; substitute subcontractors; submit daily photographs of the work in place and the work areas prepared for the next day's work; and develop a site specific quality control program, all at no cost to the City. END ARTICLE 15 Page 81 of 103 Packet Pg. 187 4.1.b ARTICLE 16 JOC PROCEDURE FOR ORDERING WORK 16.1 Initiation of a Job Order. 16.1.1 As the need exists, the Contract Administrator will notify the Contractor of a Project, schedule a Joint Scope Meeting, and issue a Notice of Joint Scope Meeting. The Contractor does not have the right to refuse to perform any Project, Pre -priced Task, or Non-Prepriced Task. 16.1.2 The Contractor shall attend the Joint Scope Meeting and discuss, at a minimum: a. general scope of the work to be performed; b. possible alternatives for performing the work and value engineering; c. access to the site and protocol for admission; d. hours of operation; e. staging area and areas that are off-limits; f. requirements for catalog cuts, technical data, samples and shop drawings; g. requirements for professional services, sketches, drawings, and specifications; h. construction duration, due date for Detailed Scope of Work; i. the presence of hazardous materials; j. organization of Price Proposal — by location, by corner, etc. k. date on which the Job Order Proposal is due. I. if the Job Order will be a Federally Funded Job Order, the applicable Federal Contract Clauses, such as, for example, Davis -Bacon and DBE requirements. 16.1.3 Upon completion of the joint scoping process, the Contractor will prepare a draft Detailed Scope of Work referencing any sketches, drawings, photographs, and specifications required to document accurately the work to be accomplished. The City shall review the Detailed Scope of Work and request any required changes or modifications. When an acceptable Detailed Scope of Work is complete, the City will issue a Request for Proposal that will require the Contractor to prepare a Job Order Proposal within a certain period of time. The Detailed Scope of Work will be the basis on which the Contractor will develop its Job Order Proposal and the City will evaluate the same. The Contractor does not have the right to refuse to perform any task or any work in connection with a particular Project. 16.1.4 The City may, at its option, include quantities in the Detailed Scope of Work if it helps to define the Detailed Scope of Work, if the actual quantities required are not known or cannot be determined at the time the Detailed Scope of Work is prepared, if the Contractor and the City cannot agree on the quantities required, or for any other reason as determined by the City. In all such cases, the City shall issue a Supplemental Job Order adjusting the quantities appearing in the Detailed Scope of Work to the actual quantities. 16.1.5 If the Contractor requires additional information to clarify the Detailed Scope of Work before preparing the Job Order Proposal, the Contractor will make such request quickly so that the Job Order Proposal can be submitted on time. 16.2 Preparation of the Price Proposal. 16.2.1 The Contractor's Job Order Proposal shall include, at a minimum: a. Job Order Price Proposal; Page 82 of 103 Packet Pg. 188 4.1.b b. Support documentation for Non-Prepriced Tasks; c. Required drawings or sketches; d. List of anticipated Subcontractors including a MBE/WBE Certification if required; e. Construction schedule; f. Other requested documents. 16.2.2 The Job Order Price shall be the value of the approved Job Order Price Proposal. 16.2.3 The value of the Job Order Price Proposal shall be calculated by summing the total of the calculations for each Pre -priced Tasks (Unit Price x quantity x Adjustment Factor) plus the value of all Non-Prepriced Tasks. 16.2.4 The Contractor will prepare Price Proposals in accordance with the following: a. Pre -priced Task: A task described for which a unit price is set forth in the Construction Task Catalog°. The Contractor shall select the appropriate Pre - priced Tasks, enter the accurate quantities, and select the appropriate Adjustment Factor to be used for each such Pre -priced Task. The Contractor shall use the Adjustment Factors in effect on the date the Price Proposal is due, even though the Job Order may be issued after the Adjustment Factors have been updated. b. Non-Prepriced Task: A task that is not set forth in the Construction Task Catalog°. c. Information submitted in support of Non-Prepriced Tasks shall include, but not limited to the following: 1) Catalog cuts, specifications, technical data, drawings, or other information as required to evaluate the task. 2) If the Contractor will perform Work with its own forces, it must submit three (3) independent quotes for all material to be installed and will use Pre -priced Tasks for labor and equipment from the Construction Task Catalog°. If the Work is to be subcontracted, the Contractor must submit three (3) independent quotes from subcontractors. The Contractor will not submit a quote or bid from any supplier or subcontractor that the Contractor is not prepared to use. The City may require additional quotes and bids if the suppliers or subcontractors are not acceptable or if the prices are not reasonable. If three (3) quotes or bids cannot be obtained, the Contractor will provide the reason in writing for the City's approval. If approved, less than three (3) quotes or bids will be allowed. 3) After a Non-Prepriced Task has been approved by the City, the Unit Price for such task will be established, following approval by the City, and fixed as a permanent Non- Prepriced Task which will no longer require price justification. 4) The City's determination as to whether a task is a Pre -priced Task or a Non-Prepriced Task shall be final, binding and conclusive as to the Contractor. Page 83 of 103 Packet Pg. 189 4.1.b 16.2.5 Whenever, because of trade jurisdiction rules or small quantities, the cost of a minor task in the Job Order Price Proposal is less than the cost of the actual labor and material to perform such task, the City may permit the Contractor to be paid for such task as a Non- Prepriced Task, or use Pre -priced labor tasks and material component pricing to cover the actual costs incurred. Provided, however, that there is no other work for that trade on the Project or other work for that trade cannot be scheduled at the same time and the final charge does not exceed One Thousand Dollars ($1,000). 16.2.6 The Contractor shall make the necessary arrangements for and obtain all filings and permits required for the Work, including the preparation of all drawings, sketches, calculations and other documents and information that may be required therefor. If the U Contractor is required to pay an application fee for filing a project, a fee to obtain a building c permit, or any other permit fee to the City, State or some other governmental or regulatory 0 agency, then the amount of such fee paid by the Contractor for which a receipt is obtained ) shall be treated as a Reimbursable Task to be paid without mark-up. The cost of expediting services or equipment use fees are not reimbursable. ° 0 16.2.7 The Contractor shall provide incidental engineering and architectural services required in 3 connection with a particular Job Order including drawings and information required for a filing. Y) 16.2.8 The Contractor's Job Order Proposal shall be submitted by the date indicated on the Request for Proposal. All incomplete Job Order Proposals shall be rejected. The time allowed for preparation of the Contractor's Job Order Proposal will depend on the complexity and urgency of the Job Order but should average between seven and fourteen days. On complex Job Orders, such as Job Orders requiring incidental engineering/architectural drawings and approvals and permits, allowance will be made to provide adequate time for preparation and submittal of the necessary documents. 16.2.9 In immediate response situations and minor maintenance and repair Job Orders requiring immediate completion, the Job Order Proposal may be required quickly and the due date will be so indicated on the Request for Proposal or, as described below, the Contractor may be directed to begin work immediately with the paperwork to follow. 16.2.10 For purposes of Using the Construction Task Catalog®, the project site is defined as the exterior perimeter of a building. For work not performed in a building, the project site is defined as the limits of the work area. 16.2.11 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the price submitted. It is the Contractor's responsibility to include the necessary tasks and quantities in the Job Order Price Proposal and apply the appropriate Adjustment Factor(s) prior to delivering it to the City. 16.2.12 If the Contractor requires clarifications or additional information regarding the Detailed Scope of work in order to prepare the Job Order Proposal, the request must be submitted Page 84 of 103 Packet Pg. 190 4.1.b so that the submittal of the Job Order Proposal is not delayed. 16.2.13 In the event the Contractor is required to work in a secured facility or location where labor, materials, and equipment must be inspected, the Contractor will be permitted to add labor hours to the Job Order Price Proposal to account for lost time as a result of such inspection. 16.2.14 The final price submitted for Non-Prepriced Tasks shall be according to the following formula: For Non-Prepriced Tasks Performed with Contractor's Own Forces: A = The hourly rate for each trade classification not in the Construction Task Catalog° multiplied by the quantity; B = The rate for each piece of Equipment not in the Construction Task Catalog° multiplied by the quantity; C = Lowest of three (3) independent quotes for all materials, unless a lower number of quotes is approved by the Owner with a letter of justification. Total for a Non-Prepriced Tasks performed with Contractor's Own Forces _ (A+B+C) x Non-Prepriced Task Adjustment Factor For Non-Prepriced Tasks Performed by Subcontractors: If the Non-Prepriced Task is to be subcontracted, the Contractor must submit three (3) independent quotes for the work. D = Lowest of three (3) Subcontractor Quotes Total Cost for Non-Prepriced Tasks performed by Subcontractors = D x Non-Prepriced Task Adjustment Factor a. After a Non-Prepriced Task has been approved by the City, the Unit Price for such task will be established, and fixed as a permanent Non-Prepriced Task which will no longer require price justification. b. The City's determination as to whether a task is a Pre -priced Task or a Non-Prepriced Task will be final, binding and conclusive to the Contractor. 16.2.15 The Contractor will make the necessary arrangements for and obtain all filings and permits required for the Work, including the preparation of all drawings, sketches, calculations and other documents and information that may be required. If the Contractor is required to pay an application fee for filing a project, a fee to obtain a building permit, or any other permit fee to the City, State or some other governmental or regulatory agency, then the amount of such fee paid for which a receipt is obtained will be treated as a Reimbursable Task to be paid without markup. Page 85 of 103 Packet Pg. 191 4.1.b 16.2.16 The Contractor shall provide incidental engineering and architectural services required in connection with a particular Job Order including drawings and information required for filing. 16.2.17 The Contractor's Job Order Proposal is to be submitted by the date indicated on the Request for Proposal. All incomplete Job Order Proposals shall be rejected. The time allowed for preparation of the Contractor's Job Order Proposal will depend on the complexity and urgency of the Job Order but should average between seven (7) and fourteen (14) days. On complex Job Orders, such as Job Orders requiring incidental engineering/architectural drawings and approvals and permits, allowance will be made to provide adequate time for preparation and submittal of the necessary documents. 16.2.18 In emergency situations and minor maintenance and repair Job Orders requiring immediate completion, the Job Order Proposal may be required quickly and the due date will be so indicated on the Request for Proposal. 16.2.19 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the price submitted. It is the Contractor's responsibility to include the necessary tasks and quantities in the Price Proposal and apply the appropriate Adjustment Factor(s) prior to delivering it to the City. 16.2.20 If the Contractor requires clarifications or additional information regarding the scope of work in order to prepare the Job Order Proposal, the request must be submitted so that the submittal of the Job Order Proposal is not delayed. 16.3 Review of the Job Order Proposal and Issuance of the Job Order 16.3.1 The City will evaluate the entire Price Proposal and compare these with the City's estimate of the Detailed Scope of Work to determine the reasonableness of approach, including the appropriateness of the tasks and quantities proposed. All incomplete Job Order Proposals will be rejected. The City will review the Price Proposal to determine the accuracy of the Pre -priced Tasks, quantities, Adjustment Factors, and Non-Prepriced Tasks. 16.3.2 The Contractor may choose the means and methods of construction; subject however, to the City's right to reject any means and methods proposed by the Contractor that: a. Will constitute or create a hazard to the work, or to persons or property; or b. Will not produce finished Work in accordance with the terms of the Contract; or c. Unnecessarily increases the price of the Job Order when alternative means and methods are available. 16.3.3 The City reserves the right to reject a Job Order Proposal or cancel a Project for any reason. The City also reserves the right not to issue a Job Order if it is determined to Page 86 of 103 Packet Pg. 192 4.1.b be in the best interests of the City. The City may perform such work by other means. The Contractor will not recover any costs arising out of or related to the development of the Job Order including but not limited to the costs to attend the Joint Scope Meeting, review the Detailed Scope of Work, prepare a Job Order Proposal including incidental architectural and engineering services, subcontractor costs, and the costs to review the Job Order Proposal with the City. 16.3.4 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the lump sum price submitted. It is the Contractor's responsibility to include the necessary Pre- priced Tasks and Non-Prepriced Tasks and quantities in the Job Order Price Proposal prior to delivering it to the City. 16.3.5 It is the Contractor's responsibility to include the necessary Pre -priced Tasks and Non-Prepriced Tasks, accurate quantities, and correct Adjustment Factors in the Price Proposal prior to delivering it to the City. 16.3.6 If the Job Order Proposal is found to be complete and accurate, The City may issue a Job Order to the Contractor. 16.3.7 The Job Order signed by The City and delivered to the Contractor constitutes The City's acceptance of the Contractor's Job Order Proposal. 16.3.8 A Job Order will reference the Detailed Scope of Work and set forth the Job Order Completion Time and the Job Order Price. The Job Order Price shall be the value of the approved Price Proposal. 16.3.9 All clauses of this Contract shall apply to each Job Order. 16.3.10 The Contractor will be paid the Job Order Price for completing the Detailed Scope of Work within the Job Order Completion Time. 16.3.11 The City, without invalidating the Job Order, may order changes in the Detailed Scope of Work by adding to, changing, or deleting from the Detailed Scope of Work, by issuing a Supplemental Job Order. All Supplemental Job Orders shall be developed in accordance with these procedures for ordering work. 16.3.12 The City may decide not to issue a Job Order under development, may decide to cancel a Job Order or any portion of a Job Order, or cancel a Project or any portion of a Project, for any reason. In such case, the Contractor shall not recover any costs arising out of or related to the development of the Job Order including but not limited to attending the Joint Scope Meeting, preparing or reviewing the Detailed Scope of Work, preparing a Job Order Proposal (including incidental architectural and engineering services), subcontractor costs, or reviewing the Job Order Proposal with The City. The City may perform such work by other means. 16.3.13 A Job Order will reference the Detailed Scope of Work and set forth the Job Order Completion Time, and the Job Order Price. A separate Job Order will be issued for each Project. Extra work, credits, and deletions will be contained in a Page 87 of 103 Packet Pg. 193 4.1.b Supplemental Job Order. The Job Order Price shall be a lump sum, fixed price for the completion of the Detailed Scope of Work. 16.3.14 Each Job Order provided to the Contractor will reference the Detailed Scope of Work and set forth the Job Order Price and the Job Order Completion Time. All clauses of this Contract shall be applicable to each Job Order. The Job Order, signed by the City and delivered to the Contractor constitutes the City's acceptance of the Contractor's Job Order Proposal. A signed copy of the Job Order will be provided to the Contractor. 16.3.15 In the event that immediate emergency response is necessary, the Contractor shall be required to follow alternative procedures as established by the City. The L Contractor shall begin work as directed notwithstanding the absence of a fully o developed Request for Proposal, Detailed Scope of Work, or Job Order. The L) Contractor shall be compensated for such work as if the work had been ordered under L the standard procedures. The Contractor must submit to the City's Representative, o their emergency procedure/ safety plan prior to starting work. The Contractor must be o responsible for quality assurance and quality control. L 3 Q 16.3.16 Federally Funded Job Orders When the City initiates a Job Order, the City will specify whether the Job Order is a Federally Funded Job Order or not. If the Job Order has no such specification, then the Job Order is not a Federally Funded Job Order. A Federally Funded Job Order is subject to the Federal Contract Clauses, which will be provided by the City. In the event of irreconcilable conflict between the Federal Contract Clauses applicable to a Federally Funded Job Order and other Contract Documents, such Federal Contract Clauses control. The Federal Contract Clauses do not apply to Job Orders that are not Federally Funded Job Orders. END ARTICLE 16 Page 88 of 103 Packet Pg. 194 4.1.b ARTICLE 17 ENGINEERING NEWS RECORD CONSTRUCTION COST INDICES ADJUSTMENT OF THE ADJUSTMENT FACTORS 17.1 Economic Price Adjustment: The Adjustment Factors may be updated on each anniversary of the Contract date to account for changes in construction costs, provided, the Contractor requests in writing, approximately fourteen (14) to thirty (30) days prior to the anniversary of the Contract date, that the Adjustment Factors be updated. Such request shall be delivered to the City and to the Consultant/Gordian. In the event the Contractor fails to deliver the request timely, then the City will determine the date on which the Adjustment Factors will be updated, but in no event will such date be later than thirty (30) days after the written request is received by the City. Thereafter, the Contractor's Adjustment Factors will be adjusted according to the following: 17.2 The Contractor's Normal Working Hours and Other than Normal Working Hours Adjustment Factors will be adjusted according to the following: 17.2.1 A Base Year Index will be calculated by averaging the 12-month Construction Cost Indices (CCI) for Seattle, WA, published in the Engineering News Record (ENR) for the twelve (12) months immediately prior to the month of the bid due date (e.g. April bid date, Base Year Index is April of the prior year to March of the bid date year). 17.2.2 A Current Year Index will be calculated by averaging the 12-month Construction Cost Indices (CCI) for Seattle, WA, published in the Engineering News Record (ENR) for the twelve (12) months beginning with the month of anniversary of the bid due date (e.g. April bid date, Current Year Index is April of the prior year to March of the current year). 17.2.3 The Economic Price Adjustment will be calculated by dividing the Current Year Index by the Base Year Index. 17.2.4 The Contractor's original Adjustment Factors will be multiplied by the Economic Price Adjustment to obtain the Contractor's new Adjustment Factors effective for the next twelve (12) months. 17.2.5 Averages shall be obtained by summing the 12-month indices and dividing by twelve (12). 17.3 All calculations in this article will be carried to the fifth decimal place and rounded to the fourth decimal place. The following rules shall be used for rounding: 17.3.1 The fourth decimal place shall be rounded up when the fifth decimal place is five (5) or greater. 17.3.2 The fourth decimal place shall remain unchanged when the fifth decimal place is less than five (5). Page 89 of 103 Packet Pg. 195 4.1.b 17.4 Engineering News Record occasionally revises indices. Engineering News Record Construction Cost Indices used in the calculations described above will be those currently published at the time the Economic Price Adjustment calculation is performed. No retroactive adjustments will be made as a result of an Engineering News Record revision. Revised Construction Cost Indices, if any, will be used in subsequent calculations. 17.5 Under all circumstances, should the Contractor submit a Job Order Proposal with inaccurate Adjustment Factors, the act of submission by the Contractor is a waiver of all rights to any further compensation above the Job Order Price submitted in the Job Order Proposal. 17.6 The Contractor cannot delay submission of the Job Order Proposal past the due date to take advantage of a scheduled update of the Adjustment Factors. In that event, the Contractor shall use the Adjustment Factors that would have been in effect without the delay. 17.7 The Adjustment Factor for Non-Prepriced Tasks will remain constant for the duration of the Contract. END ARTICLE 17 Page 90 of 103 Packet Pg. 196 4.1.b ARTICLE 18 Software, JOC System License, and Cooperative Purchasing 18.1 JOC System License 18.1.1 The City selected The Gordian Group's (Gordian) Job Order Contracting (JOC) System for their JOC program. The Gordian JOC Solution includes Gordian's proprietary JOC System Software and JOC Applications, construction cost data (Construction Task Catalog@,) which will be used by the Contractor solely for the purpose of fulfilling its obligations under this Contract, including preparation and submission of Job Order Proposals, subcontractor lists, and other requirements specified by the City. Contractor's use, in whole or in part, of Gordian's JOC Applications, Construction Task Catalog® and other proprietary materials provided by Gordian for any purpose other than to execute work under this Contract for the CITY is strictly prohibited unless otherwise approved in writing by Gordian. The Contractor shall be required to execute Gordian's JOC System License and Fee Agreement and pay a one percent (1 %) JOC System License Fee to obtain access to the Gordian JOC Solution. 18.2 Cooperative Purchasing 18.2.1 RCW 39.34 allows cooperative purchasing between public agencies (political subdivisions) in the State of Washington. Public agencies that file an Interlocal Joint Purchasing Agreement with the City of Edmonds may also wish to procure the goods and/or services herein offered by the selected Contractor. The selected Contractor shall have the option of extending its offer to the City of Edmonds to other agencies for the same cost, terms and conditions. 18.2.2 The City of Edmonds does not accept any responsibility for agreements, contracts or purchase orders issued by other public agencies to the Contractor. Each public agency accepts responsibility for compliance with any additional or varying laws and regulations governing purchase by or on behalf of the public agency. The City of Edmonds accepts no responsibility for the performance of the Contractor in providing goods and/or services to other public agencies, nor any responsibility for the payment price to the Contractor for other public agency purchases. END ARTICLE 18 Page 91 of 103 Packet Pg. 197 4.1.b ARTICLE 19 COMPLIANCE WITH THE JOC RCW REQUIREMENTS 19.1 CONTRACTOR'S RESPONSIBILITY Contractor acknowledges that it has carefully examined the RFP documents and the Job Order Contracting RCW's. For example, the Contract is subject to RCW 39.10.200; 39.10.210; 39.10.420; 39.10.430; 39.10.440; 39.10.450; 39.10.460; and, 39.10.470. 19.2 MAXIMUM JOB ORDER VALUE The maximum dollar amount for an individual Job Order is Five Hundred Thousand dollars ($500,000) pretax. All Job Orders for the same project (original plus any L r Supplemental Job Orders) shall be treated as a single Job Order for the purpose of the o $500,000 limit. A Job Order issued for a particular project may not exceed $500,000 excluding sales tax and Gordian fees. As required by RCW 39.10.450(3), no more than twenty percent of the dollar value of a Job Order may consist of items of work not o contained in the Unit Price book. As required by RCW 39.10.450(4), any new permanent, -60 enclosed building space constructed under a Job Order shall not exceed three thousand (3,000) gross square feet. a 19.3 ADJUSTMENT FACTORS AND CONSTRUCTION TASK CATALOG® The Contractor is paid for the Job Order based upon a fixed percentage multiplier (Adjustment Factor) and fixed prices based on The Gordian Group's Construction Task Catalog° agreed to in the initial contract. Everything that is to be included in the Contractor's Adjustment Factors is listed and identified in the Construction Task Catalog° under Construction Task Catalog° Section and "Using the Construction Task Catalog°," pages 00-1 through 00-7. 19.4 PREVAILING WAGE RATES TO BE PAID A. Prior to making any payment, the City must receive a Labor and Industries approved copy of the "Statement of Intent to Pay Prevailing Wages" form from the Contractor, all sub -contractors and lower -tiers. Each progress payment application is to include a signed statement that prevailing wages have been paid. With final invoicing of a project, the City must receive a Labor and Industries certified copy of the "Affidavit of Wages Paid" form from the Contractor, all sub -contractors and lower -tiers. B. It is the Contractor's sole responsibility to ensure that the approved Intents and certified Affidavits are filed from all sub -contractors and lower -tiers and filed with the City for each Job Order. C. Job Order contractors shall pay prevailing wages for all work that would otherwise be subject to the requirements of chapter 39.12 RCW. Prevailing wages for all work performed pursuant to each Job Order must be the rates in effect at the time the individual Job Order is issued. D. If the Job Order is Funded by the Federal Transit Administration, the Davis -Bacon Act and Copeland Anti -Kickback applies. Page 92 of 103 Packet Pg. 198 4.1.b 19.5 EXECUTED OMWBE PLAN A. Per RCW 39.10.450, a public body may issue no Job Orders under a Job Order Contract until it has approved, in consultation with the Office of Minority and Women's Business Enterprises or the equivalent local agency, a plan prepared by the Contractor that equitably spreads certified women and minority business enterprise subcontracting opportunities, to the extent permitted by the Washington state civil rights act, RCW 49.60.400, among the various subcontract disciplines. B. The executed plan is required before the City will sign the Contract. 19.6 SUBCONTRACTING At least ninety percent (90%) of all work contained in a Job Order Contract must be subcontracted to entities other than the Contractor. The Contractor must distribute contracts as equitably as possible among qualified and available subcontractors including minority and woman -owned subcontractors to the extent permitted by law. 19.7 RETAINAGE The City requires each Contractor to provide a Retainage Bond in the penal sum equal to 5% of the Maximum Contract Value or $100,000 whichever is greater. If the cumulative amount of required retainage under Chapter 60.28 RCW exceeds this amount, the Contractor shall deliver a new Retainage Bond as required by the City. The Contractor must use a Retainage Bond form acceptable to the City. 19.8 PUBLIC RECORDS Under Washington state public records laws, records and documents including but not limited to written, printed, graphic, electronic, photographic or voice mail materials and/or transcriptions, recordings or reproductions provided to City or used by the City in connection to the Contract Documents become a public record subject to mandatory disclosure upon request by any person, unless the records and documents are exempt from public disclosure by a specific provision of law. The City has no obligation to enforce any exemption. Contractor will fully cooperate with the City to comply with the Washington state public records laws. 19.9 AUDITS AND RETENTION OF RECORDS A. All of the Project Records related to this Contract shall be open to inspection, audit, and/or copying by the City: i. During the Contract Time; For a period of not less than six (6) years after the date of Final Acceptance of the last Work or termination of the Contract. The Contractor shall also ensure that the wage, payroll and cost records of all Subcontractors and Suppliers at all tiers is retained and open to similar inspection or audit for the period required above by incorporating the provisions of this Audit section into any agreements with Subcontractors or Suppliers related to this Contract; and Page 93 of 103 Packet Pg. 199 4.1.b iii. If any Claim, audit, or litigation arising out of, in connection with, or related to this Contract is initiated, all documents and records shall be resolved or completed, whichever occurs later. B. The Contractor, its Subcontractors and Suppliers will make a good faith effort to cooperate with the City when the City gives notice of its need to inspect or audit Project Records. Cooperation will include assistance as may be reasonably required in the course of inspection or audit, including access to personnel with knowledge of the contents of the records being inspected or audited so that the information in the records is properly understood by the persons performing the inspection or audit. Cooperation will also include establishing a specific mutually agreeable timetable for making the records available for inspection by the City and its designee. Unless otherwise agreed, if the Contractor, its Subcontractors and Suppliers cannot make at least some of the relevant records available for inspection within fourteen (14) days of the City's written request, cooperation will necessarily entail providing the City with a reasonable explanation for the delay in production of records. Failure to cooperate will impact future responsibility determinations. C. The Contractor agrees that no Claim will be made against the City for the Work described herein unless the Contractor makes available to the City all documents and records. Failure to maintain and retain sufficient records to allow the City to verify all costs or damages or failure to permit the City or its designee access to the books and records shall constitute a waiver of the rights of the Contractor, Subcontractor, and Supplier to claim or be compensated for any damages, additional time or money under this Contract and shall bar any recovery there under. D. Inspection, audit, and/or copying of Project Records may be performed by the City at any time with not less than fourteen (14) days written notice; provided however, if an audit is to be commenced more than sixty (60) days after Final Acceptance of the Contract, the Contractor will be given thirty (30) days' notice of the time when the audit or inspection is to begin. E. The Contractor and its Subcontractors and Suppliers shall provide adequate facilities, acceptable to the City, for inspection, auditing, and/or copying during normal business hours. F. No additional compensation will be provided to the Contractor, its Subcontractors, or Suppliers for time or money spent in complying with the requirements of this Audit section. If the Contractor is formally dissolved, assigns or otherwise divests itself of its legal capacity under this Contract, then it will immediately notify the City and preserve such records, at its expense, as directed by the City. G. This Audit Section shall survive for six (6) years after the termination or expiration of this Contract, or conclusion of all Claims, audits or litigation, whichever occurs later. H. At a minimum, the following documents shall be considered Project Records and made available for inspection, auditing and copying: i. Daily time cards, time -sheets, daily reports, inspection reports, and supervisor's reports; ii. Insurance, welfare, and benefits records; Page 94 of 103 Packet Pg. 200 4.1.b iii. Payroll registers; iv. Earnings records; v. All relevant tax forms and records, including any state and federal payroll tax rate schedules governing the employer's payroll tax rates paid on behalf of employees that work on the project and any payroll tax forms summarizing the amounts paid; vi. Material invoices and requisitions; vii. Material cost distribution worksheets; viii. Equipment records including a list of company -owned equipment and an equipment distribution report containing equipment descriptions, equipment number, equipment rates, recorded equipment hours, phase or cost codes, dates, and any other relevant information as related to how equipment was recorded to the project; 0 ix. Contractors' rental agencies', Subcontractors', and lower tier subcontractors' invoices; o x. Contracts, purchase orders and agreements between the Contractor and each of its Subcontractors, and all lower tier subcontractor contracts and supplier contracts; A. Subcontractors' and lower tier subcontractors' payment certificates/payment a applications; N L xii. Canceled checks, payroll and Contractors; 2 xiii. Job cost reports, including both a job cost summary report comparing budgeted �a amounts to recorded amounts by cost type and phase or cost code and a job cost U0 history/detail/transaction report listing each individual transaction by phase or cost 2 code; xiv. General Ledger; tU xv. Cash disbursements journal; N xvi. All documents which relate to each and every claim together with all documents which support the amount of damages to each claim; xvii. All schedule documents, including man -loaded schedules, work plans, planned V a resource codes, phasing documents and summaries; xviii. All other documents, including email, related to the Project, Claims, or E Supplemental Job Orders; U a xix. Any documentation or information relied upon for the purposes of translating the bid a amounts to original budget amounts; xx. Original budget and updated budgets used for tracking job performance throughout the project; xxi. Labor distribution reports summarizing straight time, overtime, and double time by employee and also separately summarizing base wage amounts versus labor burden and benefit amounts; Page 95 of 103 Packet Pg. 201 4.1.b xxii. Copies of all draft and approved change orders including a supplementary documentation or information relied upon for the purposes of pricing the change orders; xxiii. To the extent any of the above -referenced records exist in machine readable format, the Contractor will make them available in that form. This requirement specifically includes but is not limited to an obligation to provide the information and access in the native format in which it is maintained by the Contractor. The Contractor will, as reasonably requested by the City, provide read-only access to and reasonable technical support necessary to make use of any enterprise or legacy software utilized by the Contractor to manipulate and/or store the relevant data. 19.10 PUBLIC NOTICE REQUIREMENTS The Contractor will publish notification of intent to perform public works projects at the beginning of each contract year in a statewide publication and in a legal newspaper of general circulation in every county in which the public works projects are anticipated, per RCW 39.10.440 (5). 19.11 PUBLIC INSPECTION OF CERTAIN RECORDS -PROTECTION OF TRADE SECRETS A. RCW 39.10.470(1) and (2) state as follows: (1) Except as provided in subsections (2) and (3) of this section, all proceedings, records, contracts, and other public records relating to alternative public works transactions under this chapter shall be open to the inspection of any interested person, firm, or corporation in accordance with Chapter 42.56 RCW. (2) Trade secrets, as defined in RCW 19.108.010, or other proprietary information submitted by a bidder, offeror, or contractor in connection with an alternative public works transaction under this chapter shall not be subject to Chapter 42.56 RCW if the bidder, offeror, or contractor specifically states in writing the reasons why protection is necessary, and identifies the data or materials to be protected. B. The following shall govern to the application of RCW 39.10.470 to this Contract and the Work: 1. Proprietary information and trade secrets must be clearly identified as "CONFIDENTIAL." 2. If any document or record does not clearly identify the "CONFIDENTIAL" portions, the City will not notify the Contractor that such documents and records will be made available for inspection and copying, and the City may publicly disclose such non - clearly identified portions with no liability whatsoever to the Contractor. 3. If a request is made for disclosure of material or any portion marked "CONFIDENTIAL," the City will determine whether the material should be made available under the law. If the City determines that the material is subject to disclosure, the City will seek to notify the Contractor of the request and allow the proposer ten (10) business days after such notification to take appropriate legal action in Snohomish County Superior Court at the Contractor's sole expense and Page 96 of 103 Packet Pg. 202 4.1.b liability. If the Contractor does not within ten (10) business days serve the Office of the City Attorney with a copy of an order entered by the Superior Court that expressly prohibits the City from disclosure of the material marked "CONFIDENTIAL," then the proposer will be deemed to have consented to the public disclosure of the material marked "Confidential" and the City may publicly disclose such material without any liability whatsoever to Contractor. 4. To the extent that the City withholds from disclosure all or any portion of Contractor's material marked "CONFIDENTIAL", the Contractor shall indemnify, defend and hold harmless the City of Edmonds from all lawsuits, liabilities, losses, damages, penalties, attorneys' fees and costs the City incurs arising from or relating to such withholding from disclosure. U L END OF SECTION 19 L L O i L 3 a Page 97 of 103 Packet Pg. 203 4.1.b SUPPLEMENTARY CONDITIONS — FEMA AND OTHER FEDERALLY FUNDED PROJECT NOTE: These Supplementary Conditions apply to FEMA and other federally funded Cites projects. The City anticipates that most projects performed thru the Job Order Contracting_ program will not be FEMA funded or otherwise federally funded. The Agreement/Contract (collectively, "Contract") may be funded in whole or in part by federal grant funding received by The City of Edmonds from the Federal Emergency Management Agency ("FEMA"), which is part of the United States Department of Homeland Security ("DHS"), or other Federal Funding sources. Therefore, Consultant/Contractor (collectively, the "Contractor") must comply with all federal laws and regulations applicable to the receipt of FEMA grants, including, but not limited to, the contractual provision set forth in Title 2 of the Code of Federal Regulations, Part 200, in connection with the Contractor's performance of the work or services covered by the Contract (the "Project"). All such federal laws and regulations shall be deemed to be inserted in the Contract and the Contract shall be read and enforced as though such federal laws and regulations were included therein. Anything to the contrary herein notwithstanding, all FEMA-mandated terms shall be deemed to control in the event of a conflict with other provisions contained in the Contract. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any City of Edmonds request that would cause the City to be in violation of these FEMA terms and conditions or any other federal law or regulation applicable to the receipt of FEMA grants. If any provision of the Contract shall be such as to effect noncompliance with any FEMA requirement, such provision shall not be deemed to form a part thereof, but the balance of the Contract shall remain in full force and effect. In addition, the Contractor agrees to the following specific provisions: 1.1 Debarment The Contractor and any prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. .2 The City will ensure the Contractor and any lower participants are not debarred by checking the government's Excluded Parties List System at SAM.gov prior to executing a contract. 1.2 Cost Plus Percentage Not Allowed Notwithstanding any provisions in the Contract to the contrary, the Contractor and any prospective lower tier participant are prohibited from using cost plus percentage contracts. This includes, but is not limited to, the use of percentages for change orders or mark-ups on sub -contractors or materials. Cost plus fixed fee, either lump sum or unit price, is authorized. Page 98 of 103 Packet Pg. 204 4.1.b 1.3Additional Federal Contracting Requirements The Contractor must comply with Executive Order 11246 of September 24, 1965, entitled Equal Employment Opportunity, as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). .2 The Contractor must comply with the requirements of the Age Discrimination Act of 1975 (42 U.S.C. § 6101 et seq.), which prohibits discrimination on the basis of age in any program or activity receiving Federal financial assistance. The Contractor must comply with the requirements of Titles I, 11, and III of the Americans with Disabilities Act, which prohibits recipients of federal funding from discriminating on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12101-12213). 4 The Contractor must comply with the requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), which provides that no person in the United States will, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Implementing regulations for the Act are found at 6 C.F.R. Part 21 and 44 C.F.R. Part 7. .5 The Contractor must comply with Title Vill of the Civil Rights Act of 1968, which prohibits Contractors from discriminating in the sale, rental, financing, and advertising of dwellings, or in the provision of services in connection therewith, on the basis of race, color, national origin, religion, disability, familial status, and sex (42 U.S.C. § 3601 et seq.), as implemented by the Department of Housing and Urban Development at 24 C.F.R. Part 100. The prohibition on disability discrimination includes the requirement that new multifamily housing with four or more dwelling units—i.e., the public and common use areas and individual apartment units (all units in buildings with elevators and ground -floor units in buildings without elevators) —be designed and constructed with certain accessible features (see 24 C.F.R. § 100.201). .6 The Contractor must comply with the Copeland Anti -Kickback Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). 7 The Contractor must comply with the Davis -Bacon Act (40 U.S.C. 276a to 276a7) as supplemented by Department of Labor regulations (29 CFR Part 5). a. This project is a public work in the State of Washington, funded in whole or in part with public funds. Therefore, the higher of the two applicable prevailing wage rates, federal or state, will be enforced. .8 The Contractor must comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327330) as supplemented by Department of Labor regulations (29 CFR Part 5). Page 99 of 103 Packet Pg. 205 4.1.b 9 The Contractor must provide reporting as specified in the plans, specifications and deliverables section of the Contract. 10 The City shall have patent rights with respect to any discovery or invention which arises or is developed in the course of or under such contract. I I The City shall have copyrights and rights respective to any data which arises or is developed in the course of or under such contract. 12 The County, State, the Federal grantor agency, the Comptroller General of the United States, or any of their duly authorized representatives shall have access to any books, documents, papers, and records of the Contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. 13 The Contractor must maintain records for three years after grantees or subgrantees make final payments and all other pending matters are closed. 14 The Contractor must comply with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000) .15 The Contractor must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. 16 The Contractor must comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94163, 89 Stat. 871). .17 The City is entitled to exercise all administrative, contractual, or other legal remedies permitted by law to enforce the Contractor's compliance with the terms of the Contract. .18 The Contractor must acknowledge its use of federal funding when issuing requests for proposals, bid invitations, and other documents describing the Project in connection with performing the Contract. Page 100 of 103 Packet Pg. 206 4.1.b 19 If the Contractor collects PH (Personally Identifiable Information) in connection with the Project, the Contractor is required to have a publicly available privacy policy that describes what PH they collect, how they use the PH, whether they share PH with third parties, and how individuals may have their PH corrected where appropriate. .20 The Contractor must comply with the Drug -Free Workplace Act of 1988 (41 U.S.C. § 701 et seq.), which is adopted at 2 C.F.R Part 3001, which requires that all organizations receiving grants from any Federal agency agree to maintain a drug -free workplace. .21 The Contractor must comply with the requirements of 31 U.S.C. § 3729 which sets forth that no recipient of federal payments shall submit a false claim for payment. U See also 38 U.S.C. § 3801-3812 which details the administrative remedies for false r_ claims and statements made. L) .22 The Contractor must comply with Preference for U.S. Flag Air Carriers: (air carriers L 0 holding certificates under 49 U.S.C. § 41 102) for international air transportation of c people and property to the extent that such service is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974 (49 M U.S.C. § 401 18) and the interpretative guidelines issued by the Comptroller General a of the United States in the March 31, 1981, amendment to Comptroller General N Decision B-138942. Lo .23 The Contractor must comply with the Title VI of the Civil Rights Act of 1964 (Title VI) prohibition against discrimination on the basis of national origin, which requires that recipients of federal financial assistance take reasonable steps to provide meaningful access to persons with limited English proficiency ("LEP") to their programs and services. Providing meaningful access for persons with LEP may entail providing language assistance services, including oral interpretation and written translation. .24 The Contractor must comply with 31 U.S.C. § 1352, which provides that none of the funds provided under an award may be expended by the Contractor to pay any person to influence, or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal action concerning the award or renewal. .25 Unless otherwise provided by law, the Contractor is subject to the Bayh-Dole Act, Pub. L. No. 96-517, as amended, and codified in 35 U.S.C. § 200 et seq. The Contractor is subject to the specific requirements governing the development, reporting, and disposition of rights to inventions and patents resulting from financial assistance awards are in 37 C.F.R. Part 401 and the standard patent rights clause in 37 C.F.R. § 401.14. .26 The Contractor must comply with U.S. Executive Order 13224 and U.S. law that prohibit transactions with, and the provisions of resources and support to, individuals and organizations associated with terrorism. Page 101 of 103 Packet Pg. 207 4.1.b .27 The Contractor must comply with the requirements of the government -wide award term which implements Section 106(g) of the Trafficking Victims Protection Act (TVPA) of 2000, as amended (22 U.S.C. § 7104). This is implemented in accordance with OMB Interim Final Guidance, Federal Register, Volume 72, No. 218, November 13, 2007. Full text of the award term is located at 2 CFR § 175.15. .28 The Contractor must comply with the Rehabilitation Act of 1973, including all sections, that prohibits discrimination on the basis of disability. The standards for deciding if employment discrimination exists under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act. .29 The Contractor must maintain the currency of the information in the Universal Identifier and System of Award Management (SAM) until submission of the final financial report required under the award or receive final payment, whichever is later, as required by 2 C.F.R. Part 25. 30 The Contractor must comply with requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which amends 18 U.S.C. §§ 175-175c. Among other things, the USA PATRIOT Act prescribes criminal penalties for possession of any biological agent, toxin, or delivery system of a type or in a quantity that is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose. .31 The Contractor must comply with the statutory requirements for whistleblower protections (if applicable) at 10 U.S.0 § 2409, 41 U.S.C. 4712, and 10 U.S.C. § 2324, 41 U.S.C. §§ 4304 and 4310. .32 The Contractor must obtain DHS's approval prior to using the DHS seal(s), logos, crests or reproductions of flags or likenesses of DHS agency officials, including use of the United States Coast Guard seal, logo, crests or reproductions of flags or likenesses of Coast Guard officials. 33 The Contractor must acknowledge and agree —and require any sub -contractors, successors, transferees, and assignees to acknowledge and agree —to comply with applicable provisions governing DHS access to records, accounts, documents, information, facilities, and staff. Additionally: a. the Contractor must cooperate with any compliance review or complaint investigation conducted by DHS; b. the Contractor must give DHS access to and the right to examine and copy records, accounts, and other documents and sources of information related to the grant and permit access to facilities, personnel, and other individuals and information as may be necessary, as required by DHS regulations and other applicable laws or program guidance; C. the Contractor must submit timely, complete, and accurate reports to the appropriate DHS officials and maintain appropriate backup documentation to support the reports; d. the Contractor must comply with all other special reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance; U L c 0 U L a� L 0 0 3 a Page 102 of 103 Packet Pg. 208 4.1.b e. if, during the past three years, the Contractor has been accused of discrimination on the grounds of race, color, national origin (including limited English proficiency), sex, age, disability, religion, or familial status, the Contractor must provide a list of all such proceedings, pending or completed, including outcome and copies of settlement agreements to the DHS awarding office (FEMA) and the DHS Office of Civil Rights and Civil Liberties; and f. in the event any court or administrative agency makes a finding of discrimination on grounds of race, color, national origin (including limited English proficiency), sex, age, disability, religion, or familial status against the Contractor, or the Contractor settles a case or matter alleging such discrimination, the Contractor must forward a copy of the complaint and findings to the DHS Component and/or awarding office (FEMA). .34 Small and Minority Businesses: The non -Federal entity must take all necessary affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible. Affirmative steps must include: a. Placing qualified small and minority businesses and women's business enterprises on solicitation lists; b. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; C. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises; d. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; e. Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and f. Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (a) through (e) of this section. http://www.ecfr.gov/cgi- bin/text-idx?node=se2.1.200 1321 &rgn=div8 The United States has the right to seek judicial enforcement of these obligations. Page 103 of 103 Packet Pg. 209 4.1.c CITY OF EDMONDS, WASHINGTON JOB ORDER CONTRACT THIS JOB ORDER CONTRACT (hereinafter "the Contract") is entered into by and between the City of Edmonds (hereinafter "the City") and Saybr Contractors Inc. (hereinafter "the Contractor"). The City and the Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows: SECTION 1— WORK The Contractor shall complete all Work as specified or indicated in the Contract Documents The Work is generally described as follows: The Work of this Contract will be set forth in each Detailed Scope of Work referenced in the individual Job Orders. The Contractor is required to complete each Detailed Scope of Work for the Job Order Price within the Job Order Completion Time. The value of the Job Order Price Proposal shall be calculated by summing the total of the calculation for each Pre -priced Task (Unit Price x quantity x Adjustment Factor) plus the value of all Non-Prepriced Tasks. SECTION 2 — CITY REPRESENTATIVES 2.1 Project Manager: The City will appoint a Project Manager for each Job Order, who shall be the City's representative, assume all duties and responsibilities and have the rights and authority assigned to the Project Manager in the Contract Documents in connection with completion of the Work in accordance with the Job Order and the Contract Documents. 2.2 Contract Administrator: The JOC Contract Administrator is designated by the City to manage the Job Order Contracting program for the City. The Contract Administrator will oversee the execution of the program on behalf of the City and will provide overall guidance to the Project Managers and Contractor(s) in the execution of Job Orders. The Contract Administrator shall intervene in disputes or disagreements between the Project Manager and the Contractor. The Contract Administrator also may exercise any authority granted to Project Managers under the Contract Documents with respect to any Job Order at any time. SECTION 3 — CONTRACT TIME 3.1 The Base Term of the Contract is two (2) years. 3.2 There is one (1) bilateral Option Term. Both parties must agree to extend the Contract for the Option Term. The duration of the Option Term is one year. 3.3 The City and the Contractor may agree to extend the Option Term. Page 1 of 103 Packet Pg. 210 4.1.c 3.4 All Job Orders issued during the term of this Contract shall be valid and in effect notwithstanding that the Detailed Scope of Work may be performed, payments may be made, and/or the guarantee period may continue after the Contract term has expired. All terms and conditions of the Contract apply to each Job Order. 3.5 The Contractor shall commence work upon issuance of a Job Order and shall complete the Detailed Scope of Work for the Job Order Price within the Job Order Completion Time. SECTION 4 — CONTRACT PRICE 4.1 The City shall pay the Contractor for completion of each Detailed Scope of Work in accordance with the Contract Documents. 4.2 The Contract is an indefinite -quantity contract for general construction work and services. The Minimum Contract Value of Job Orders that the Contractor is guaranteed the opportunity to perform under this Contract is Twenty -Five Thousand Dollars ($25,000). The Estimated Annual Value is two Million Dollars ($2,000,000) for the City's Job Order Contracting Program. The City reserves the right to issue up to the maximum amount specified in RCW 39.10.40 of Four Million Dollars ($4,000,000) per year or such greater amount that may be authorized by statute. The Maximum Contract Value shall not exceed the value set forth in the RCW. 4.3 The Contractor is not guaranteed to receive the Estimated Annual Value. It is merely an estimate. Owner has no obligation to give the Contractor the opportunity to perform Job Orders in excess of the Minimum Contract Value. 4.4 The Contractor shall perform all work required, necessary, proper for or incidental to completing the Detailed Scope of Work called for in each individual Job Order issued pursuant to this Contract for the Unit Prices set forth in the Construction Task Catalog° and the following Adjustment Factors: Normal Working Hours Adjustment Factor (General Facilities) 7:00 am to 4:00 pm Monday through Friday, except for City Holidays: _1.3250. Other Than Normal Working Hours Adjustment Factor (General Facilities) 4:01 pm to 6:59 am Monday through Friday, and all -day Saturday, Sunday and City Holidays: 1.3350. Normal Working Hours Adjustment Factor (Secured Facilities) 7:00 am to 4:00 pm Monday through Friday, except for City Holidays: _1.3350. Other Than Normal Working Hours Adjustment Factor (Secured Facilities) 4:01 pm to 6:59 am Monday through Friday, and all -day Saturday, Sunday and City Holidays: 1.3500. Non-Prepriced Adjustment Factor: 1.3250. Page 2 of 103 Packet Pg. 211 4.1.c SECTION 5 — PAYMENT PROCEDURES The Contractor shall submit Applications for Payment in accordance with Article 12 the General Conditions. Applications for Payment will be processed by the Contract Administrator with approval by the Project Manager as provided in the General Conditions. 5.1 Progress Payments. The City shall make progress payments on account of the Job Order Price on the basis of the Contractor's Invoices as recommended by Project Manager and Contract Administrator in accordance with the General Conditions. All progress payments will be on the basis of the progress of the Work as established in the General Conditions (and in the case of Unit Price Work based on the number of units completed). 5.2.1 Final Payment. Upon final completion and acceptance of the work in accordance with the General Conditions, City shall pay the remainder of the Job Order Price as recommended by Project Manager and Contract Administrator. A Certificate of Completion signed by the Project Manager is required prior to payment of any final invoice(s). 5.2.2 Schedule. As determined by the Project Manager, progress payments shall be made per the Project Payment Schedule. 5.2.3 Separate Contract. Per RCW 39.10.450, for purposes of chapters 39.08, 39.12, 39.76, and 60.28 RCW, each Job Order issued shall be treated as a separate contract. The Contractor will provide the bonds as set forth in the RFP and in the General Conditions on the forms provided by the City. SECTION 6 — INDEMNIFICATION The indemnity and defense obligations in this Section 6 are in addition to any other indemnity and defense obligation elsewhere in the Contract Documents. A. The Contractor will defend and indemnify the City from any and all Claims arising out of, in connection with, or incident to any acts, errors, omissions, or conduct by the Contractor relating to, or arising out of its performance of, this Contract. The Contractor will defend and indemnify the City whether a Claim is asserted directly against the City, or whether a Claim is asserted indirectly against the City, e.g., a Claim is asserted against someone else who then seeks contribution or indemnity from the City. The amount of insurance obtained by, obtainable by, or required of the Contractor does not in any way limit the Contractor's duty to defend and indemnify the City. The City retains the right to approve Claims investigation and counsel assigned to said Claim and all investigation and legal work regarding said Claim shall be performed under a fiduciary relationship to the City. B. The Contractor's obligations under this Section shall not apply to Claims caused by the sole negligence of the City. If: (1) RCW 4.24.115 applies to a particular Claim; and (2) such Claim is caused by or results from the concurrent negligence of: (a) the Contractor, its employees, subcontractors/subconsultants or agents; and (b) the City, then the Contractor's obligations under this Section 6 shall apply only to the extent allowed by RCW 4.24.115. r 0 U a� E 0 0 CU 3 Q Page 3 of 103 Packet Pg. 212 4.1.c C. As used in this section: (1) "City" includes the City's officers, employees, agents, and representatives; (2) "Claims" include all losses, claims, demands, expenses (including, but not limited to, attorney's fees and litigation expenses), suits, judgments, or damage, whether threatened, asserted or filed against the City, whether such Claims sound in tort, contract, or any other legal theory, whether such Claims have been reduced to judgment or arbitration award, irrespective of the type of relief sought or demanded (such as money or injunctive relief), and irrespective of the type of damage alleged (such as bodily injury, damage to property, economic loss, general damages, special damages, or punitive damages); and (3) "Contractor" includes the Contractor, its employees, agents, representatives and subcontractors. D. The Contractor waives any right of contribution against the City. It is agreed and mutually negotiated that in any and all claims against the City, its agents or employees, the Contractor, a subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor, or anyone for whose acts any of them may be liable, the defense and indemnification obligations hereunder shall not be limited in any way by any limitation on the amount of damages, compensation, or benefits payable by or for the Contractor or any subcontractor under industrial worker's compensation acts, disability benefit acts, or other employees' benefit acts. The Contractor's and City's signatures hereto indicate specific waiver of the Contractor's industrial insurance immunity in order to fulfill this indemnity. Solely for the purpose of indemnification and defense as provided in this Contract, the Contractor specifically waives any immunity under the State Industrial Insurance Law, Title 51 RCW. The Contractor expressly acknowledges that this waiver of immunity under Title 51 RCW was the subject of mutual negotiation and was specifically entered into pursuant to the provisions of RCW 4.24.115. SECTION 7 — CONTRACTOR'S REPRESENTATIONS The Contractor makes the following representations: 7.1 The Contractor has familiarized itself with the nature and extent of the Contract Documents, Work, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work. 7.2 The Contractor is fully qualified to perform the Work to be performed hereunder in a competent and professional manner. 7.3 The Contractor has given the Project Manager written notice of all conflicts, errors or discrepancies that it has discovered in the Contract Documents and the written resolution thereof by the Project Manager is acceptable to the Contractor. SECTION 8 — CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between the City and the Contractor concerning the Work consist of the following: 8.1 This Contract and its exhibits, if any. In a Federally Funded Job Order (as defined in the General Conditions) this Contract includes the applicable current Federal Contract Clauses, which the City will specifically designate in the Job Order. These Federal Contract Clauses are only applicable to that specific Federally Funded Job Order and have no force or effect with respect to any other Job Order. A Federally Funded Job Order may also include one - Page 4 of 103 Packet Pg. 213 4.1.c time changes to the Contract Documents specifically for that Job Order signed for the City by the Contract Administrator as necessary to coordinate the requirements of the applicable Federal Contract Clauses with the requirements of the Contract Documents. 8.2 General Conditions, attached hereto and incorporated by reference. 8.3 Supplementary Conditions, attached hereto and incorporated by reference. 8.4 The RFP and all addenda, incorporated by reference. 8.5 Contractor's Proposal, incorporated by reference. If there is inconsistency between any provision of the Contractor's Proposal and any other Contract Document, then the provision imposing the more stringent requirement on the Contractor will control. 8.6 The Construction Task Catalog® and Technical Specifications, incorporated by reference 8.7 All Job Orders and related documents, including but not limited to, the Detailed Scope of Work with Drawings and/or Specifications, Request for Proposal, Price Proposal, Job Order Proposal, Notice to Proceed, submittals, record documents, and all required close-out documentation and warranties, incorporated by reference. If there is inconsistency between any provision of the documents listed in this Section 8.7 and any other Contract Document, then the provision imposing the more stringent requirement on the Contractor will control. There are no Contract Documents other than those listed above in this Section 8. The Contract Documents may only be amended, modified or supplemented as provided in the General Conditions or Supplementary Conditions. All Contract Documents are essential parts of the Contract, and a requirement occurring in one is as binding as though occurring in all. In cases of conflict in the requirements and provisions as set out by the Contract Documents, the specifications, or the drawings, such conflict shall be reconciled by the order of precedence in the order the Contract Documents are set forth above. Additionally, in the event of conflicting provisions within the Job Order Contract, the following order of precedence with item (a) representing the highest precedence for resolution of the conflict shall apply: a) Contract Modifications (later takes precedence over earlier) b) Job Order Contract c) Addenda (later takes precedence over earlier) d) Job Orders (including Detailed Scopes of Work, Job Order Proposals, and any Supplemental Job Orders) e) Request for Proposals f) General Terms and Conditions g) Special and Supplementary Conditions (when provided) h) The Construction Task Catalog© i) Gordian Technical Specifications Any modification of any Contract Document listed in sections 8.1 to 8.6 above requires an amendment executed by an authorized representative of the City and by an authorized representative of the Contractor. Changes to Contract Documents listed under Section 8.7 may be Page 5 of 103 Packet Pg. 214 4.1.c executed by an authorized representative of the Contractor and by the Project Manager or the Contract Administrator for the City. SECTION 9 — PREVAILING WAGES Contractor shall comply with all state and federal laws relating to the employment of labor and wage rates to be paid. The Contractor will be required to file prevailing wage intents and affidavits with the Washington State Department of Labor & Industries for each Job Order. A Federally - Funded Job Order may specify the Davis -Bacon Act and Copeland Anti -Kickback Act, in which case the Contractor shall comply with these requirements. The Contractor will pay Washington state prevailing wages or Davis -Bacon wages, whichever is higher. SECTION 10 — MISCELLANEOUS 10.1 Terms used in this Contract which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 10.2 No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.3 City and Contractor each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. 10.4 This Contract is governed by the laws of the State of Washington, without regard to the principles of conflict of laws. Any action or suit brought in connection with this Contract shall be exclusively brought in the Superior Court of King County, Washington. 10.5 Force Majeure: Neither party shall be liable to the other or deemed in breach or default for any failure or delay in performance under this Contract during the time and to the extent its performance is prevented by reasons of Force Majeure. For the purposes of this Contract, Force Majeure means an occurrence that is beyond the reasonable control of and without fault or negligence of the party claiming force majeure and which, by exercise of due diligence of such party, could not have been prevented or overcome. Force Majeure shall include natural disasters, including fire, flood, earthquake, windstorm, avalanche, mudslide, and other similar events; acts of war or civil unrest when an emergency has been declared by appropriate governmental officials; acts of civil or military authority; freight embargoes; epidemics; quarantine restrictions; labor strikes; boycotts; terrorist acts; riots; insurrections; explosions; and nuclear accidents. A party claiming suspension or termination of its obligations due to force majeure shall give the other party prompt written notice, but no more than two (2) working days after the event, of the impediment and its effect on the ability to perform; failure to provide such notice shall preclude recovery under this provision. Page 6 of 103 Packet Pg. 215 4.1.c 10.6 Nondiscrimination: In hiring or employment made possible or resulting from this Contract, there shall be no unlawful discrimination against any employee or applicant for employment because of sex, age (except minimum age and retirement provisions), race, color, creed, national origin, citizenship or immigration status (except if authorized by federal or state law, regulation, or government contract), marital status, sexual orientation, honorably discharged veteran or military status, the presence of any sensory, mental, or physical handicap or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification. This requirement shall apply to but not be limited to the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt or the benefit of any services or activities made possible by or resulting from this Contract on the grounds of sex, race, color, creed, national origin, age (except minimum age and retirement provisions), citizenship or immigration status (except if authorized by federal or state law, regulation, or government contract), marital status, sexual orientation, honorably discharged veteran or military status, the presence of any sensory, mental or physical handicap, or the use of a trained dog guide or service animal by a person with a disability. 10.7 Integration: The agreement between the parties shall consist of this Contract, its attached Appendices 1 & 2 and General and Supplementary Conditions, and all other Contract Documents referenced in Section 8, above. These writings constitute the entire agreement of the parties and shall not be amended except by a writing executed by both parties. In the event of any conflict between this written Contract and any provision in the Contract Documents, the order of precedence shall apply. 10.8 This Contract, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by the Contractor to any other person or entity without the prior written consent of the City, which consent will not be unreasonably withheld. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of the Contractor as stated herein. 10.9 Counterpart Originals: This Contract maybe executed in any number of counterpart originals, each of which shall be deemed to constitute an original Contract, and all of which shall constitute one Contract. The execution of one counterpart by a Party shall have the same force and effect as if that Party had signed all other counterparts. Page 7 of 103 Packet Pg. 216 4.1.c IN WITNESS WHEREOF, the City and the Contractor have signed this Contract. This Contract is effective as of the date of the last person to sign it, and may be executed in multiple counterparts, each of which shall be deemed an original. CITY OF EDMONDS, WASHINGTON Mike Nelson, Mayor ATTEST/AUTHENTICATED: Scott Passey, City Clerk Date: APPROVED AS TO FORM: Office of the City Attorney CONTRACTOR Karen Say-Valadez, CEO, Saybr Contractors Inc. Date: Page 8 of 103 Packet Pg. 217 4.1.c JOB ORDER CONTRACT APPENDIX 1 (Appendix A of USDOT 1050.2A Standard Title VI Assurances) During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter collectively referred to as the "Contractor") agrees as follows: 1. Compliance with Regulations: The Contractor shall comply with the acts and regulations relative to nondiscrimination in federally -assisted programs of the United States Department of Transportation (USDOT), Title 49, Code of Federal Regulations, Part 21 (49 CFR 21), as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Agreement. 2. Nondiscrimination: The Contractor, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Contractor shall not participate directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers any activity, project, or program set forth in Appendix B of 49 CFR 21. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, request for proposal, or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials, or leases of equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. 4. Information and Reports: The Contractor shall provide all information and reports required by the Regulations and directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the appropriate state or federal agency to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor shall so certify to the City, or state or federal agency, as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such contract sanctions as it or the appropriate state or federal agency may determine to be appropriate, including, but not limited to: • Withholding of payments to the Contractor under the Agreement until the Contractor complies; and/or • Cancellation, termination, or suspension of the Agreement, in whole or in part. 6. Incorporation of Provisions: The Contractor shall include the provisions of the above paragraphs one (1) through five (5) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Contractor shall take such action with respect to any subcontractor or procurement as the City or appropriate state or federal agency may direct as a means of enforcing such provisions, including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with, litigation by a subcontractor or supplier as a result of such direction, the Contractor may request that the City enter into such litigation to protect the interests of the City; or may request that the appropriate state agency enter into such litigation to protect the interests of the State of Washington. In addition, the Contractor may request the appropriate federal agency enter into such litigation to protect the interests of the United States. Page 9 of 103 Packet Pg. 218 4.1.c JOB ORDER CONTRACT APPENDIX 2 (Appendix E of USDOT 1050.2A Standard Title VI Assurances) During the performance of this contract, the Contractor, for itself, its assignees, and successors in the interest (hereinafter referred to as the "Contractor") agrees to comply with the following non- discrimination statutes and authorities; including but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration's Non -Discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898 , Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Person with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure the LEP person have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). Page 10 of 103 Packet Pg. 219 4.1.c GENERAL CONDITIONS ARTICLE 1 DEFINITIONS .................. 1.1 Definition of Terms 1.1.1 JOC Specific Definition of Terms 1.2 Definitions/Abbreviations ARTICLE 2 PRELIMINARY MATTERS............ 2.1 City Operations 2.2 Starting the Job Order (Notice to Proceed) 2.3 Job Order Completion Time 2.4 Extension of Time 2.5 Before Starting Work 2.6 Preconstruction Conference 14 26 ARTICLE 3 CONTRACT DOCUMENTS: INTENT, CORRELATION, EXECUTION OF AND OWNERSHIP OF CONTRACTDOCUMENTS.........................................................................................................................29 3.1 Intent 3.2 Correlation of the Contract Documents 3.3 No Warranties by the City ARTICLE 4 PHYSICAL CONDITIONS AND REFERENCE POINTS....................................................31 4.1 Unforeseen Physical Conditions ARTICLE 5 BONDS AND INSURANCE...............................................................................................32 5.1 Performance Bond 5.2 Payment Bond 5.3 Contractor's Liability Insurance 5.4 Contractor Pollution Liability 5.5 Waiver of Rights 5.6 Receipt and Application of Property Insurance Proceeds ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES..............................................................................43 6.1 Examination of the Site of Work and Detailed Scope of Work 6.2 Error, Inconsistency, Omission or Variance in the Contract Documents 6.3 Supervision 6.4 Labor, Materials, and Equipment 6.5 Equivalent Materials and Equipment, "or Equal" 6.6 Disposal of Demolished Materials 6.7 Subcontractors and Sub -Subcontractors 6.8 Patent Fees and Royalties 6.9 Laws and Regulations 6.10 Taxes 6.11 Use of Premises 6.12 Record Documents 6.13 Safety and Protection 6.14 Emergencies 6.15 Shop Drawings and Samples 6.16 Continuing the Work 6.17 Warranties 6.19 Progress Schedule 6.20 On -Site Documents 6.21 Working Drawings, Product Data, Samples, and Other Submittals 6.22 Cutting, Fitting and Patching of Work Page 11 of 103 Packet Pg. 220 4.1.c 6.23 Inspection of the Work 6.24 Uncovering of Work 6.25 Correction of Work 6.26 Responsibility for Work 6.27 Hazardous Materials 6.28 Clean-up 6.29 Protection of Work During Suspension 6.30 Notice and Detailed Breakdown of Claim 6.32 Prerequisite to Suit 6.33 Indemnification ARTICLE 7 ADDITIONAL WORK AND WORK BY OTHERS............................................................. 61 7.1 Additional Work ARTICLE 8 CITY'S RESPONSIBILITIES............................................................................................. 62 8.1 Authority of the Project Manager 8.2 Administration of the Contract 8.3 City's Right to Carry Out Other Work 8.4 Officers and Employees of the City Have No Personal Liability 8.5 Gratuities 8.6 Service of Notices on the Contractor ARTICLE 9 PROJECT MANAGER'S STATUS DURING WORK ........................................................ 64 9.1 City's Representative 9.2 Clarifications and Interpretations 9.3 Rejecting Defective Work 9.5 Decisions on Disagreements 9.6 Limitations on Project Manager's Responsibilities 9.8 Requests for Instruction ARTICLE 10 CHANGES IN THE WORK.................................................................................................67 10.1 Changes to Contract Documents 10.2 Change Order and Supplemental Job Order 10.3 Job Order Price 10.4 Job Order Completion Time ARTICLE 11 WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK.....................................................................................................70 11.1 Warranty and Guarantee 11.2 Access to Work 11.3 Tests and Inspections 11.4 City May Stop the Work 11.5 Correction or Removal of Defective Work 11.6 Acceptance of Defective Work 11.7 City May Correct Defective Work ARTICLE 12 PAYMENTS TO CONTRACTOR AND COMPLETION.. 12.1 Application for Progress Payment 12.2 Contractor's Warranty of Title 12.3 Review of Applications for Progress Payment 12.4 Substantial Completion 12.5 Partial Utilization 12.6 Final Inspection ................................................ 73 c� L c 0 U `m L O 0 L 3 a L 0 r L c 0 U L U) CO) C a� E z U r Q r c a� U c2 Q Page 12 of 103 Packet Pg. 221 4.1.c 12.7 Final Application for Payment 12.8 Final Payment and Acceptance 12.9 Contractor's Continuing Obligation 12.10 Waiver of Claims ARTICLE 13 SUSPENSION OF WORK AND TERMINATION.............................................................. 77 13.1 Suspend the Work 13.2 City May Terminate 13.3 Termination for Convenience 13.4 Minimum Contract Value Not Achieved 13.5 Contractor may Stop Work or Terminate ARTICLE15 MISCELLANEOUS..................................................................................................................80 15.1 General Requirements 15.2 Giving Notice 15.3 Computation of Time 15.4 Non -Discrimination 15.5 Contractor Selection 15.6 Contractor's Personnel ARTICLE 16 JOC PROCEDURE FOR ORDERING WORK.................................................................. 82 16.1 Initiation of a Job Order. 16.2 Preparation of the Price Proposal 16.3 Review of the Job Order Proposal and Issuance of the Job Order ARTICLE 17 ENR CCI ADJUSTMENT OF THE ADJUSTMENT FACTORS ......................................... 89 ARTICLE 18 SOFTWARE, JOC SYSTEM LICENSE, AND COOPERATIVE PURCHASING ............... 91 18.1 JOC System License 18.2 Cooperative Purchasing ARTICLE 19 COMPLIANCE WITH THE JOC RCW REQUIREMENTS..............................................92 19.1 Contractor's Responsibility 19.2 Maximum Job Order Value 19.3 Adjustment Factors and Construction Task Catalog® 19.4 Prevailing Wage Rates to be Paid 19.5 Executed OMWBE Plan 19.6 Subcontracting 19.7 Public Records 19.8 Audits and Retention of Records 19.9 Public Notice Requirements 19.10 Public Inspection of Certain Records -Protection of Trade Secrets Page 13 of 103 Packet Pg. 222 4.1.c ARTICLE 1 DEFINITIONS 1.1 Definition of Terms: Wherever used in these General Conditions or in the other Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof. Acceptance The official act of the City, Contract Administrator, or Project Manager as described in Article 12. Addenda Written or graphic instruments issued prior to the submittal of Contractor Proposals which clarify, correct or change the Proposal documents or the Contract Documents Contract (or Job The written agreement between the City and the Contractor. L d o Order Contract) o L The form accepted by Project Manager which is to be used by f° Application for Contractor in requesting progress or final payment and which is a Payment to include such supporting documentation as is required by the L Contract Documents. r Bonds Performance and payment bonds and other instruments of security. Contract The authorized representative of the City who is assigned Administrator immediate charge of the administration of the Job Order Contract. Contract Documents All of the documents constituting the Contract. Contractor The individual, firm, partnership, corporation or combination thereof with whom City has entered into the Contract. City The City of Edmonds. Depending on the context, the term City may also include all of the City's elected officials, officers, employees and other authorized representatives Page 14 of 103 Packet Pg. 223 4.1.c Day Unless otherwise designated in the Contract Documents, a calendar day of twenty-four (24) hours measured from midnight to the next midnight. Defective An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents or does not meet the requirements of any inspection, test or approval referred to in the Contract Documents, or has been damaged prior to Project Manager's recommendation of final payment. Drawinas The drawings which show the character and scope of the Work to be performed and which have been prepared or approved by Project Manager assigned to the Job order and which are referred to in the Detailed Scope of Work. Effective Date of the The date indicated in the Contract on which it becomes Contract effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver. Federally Funded A Job Order designated by the City as federally funded, in Job Order which case the Job Order includes the Federal Contract Clauses. Federal Contract The current federal contract clauses determined by the City to Clauses be applicable to a Federally Funded Job Order. Page 15 of 103 Packet Pg. 224 4.1.c Field Order A written order issued by Project Manager which orders minor changes in the Work in accordance with section 10.1.5, but which does not involve a change in the Price or the Completion Time. Final Completion Occurs when all requirements have been completed as stated in section 2.3 and Article 12. Final Payment The payment to be made to the Contractor in accordance with Article 12. Hazardous Materials The term "Hazardous Materials" means any hazardous or toxic substances, materials and wastes listed in the United States Department of Transportation Hazardous Materials Table 49 CFR 172.101 or listed by the Environmental Protection Agency as hazardous substances in 40 CFR Part 302 and any amendments thereto, and any substances, materials or wastes that are or become regulated under federal, state or local law. Hazardous Materials or substances shall also include, but not be limited to: regulated substances, petroleum products, pollutants, and any and all other environmental contamination as defined by, and in any and all federal. State and/or local laws, rules, regulations, ordinances or statutes now existing or hereinafter enacted relating to air, soil, water, environmental or health and safety conditions. Inspector The City's authorized representative assigned to make inspections of the Contractor's performance of the Work. Liquidated Damages The amount prescribed herein to be paid to the City, or to be deducted from any payments due or to become due the Contractor, for each day's delay in completing the whole or any specified portion of the work beyond the time allowed in the Job Order. At the sole discretion of the City, liquidated damages will be assessed, if at all, on a Job Order -by -Job Order basis. For each calendar day that the Detailed Scope of Work for a Job Order shall remain incomplete after the Job Order Completion Time, the amount per calendar day specified in following table, Schedule of Liquidated Damages, will be deducted from any money due the Contractor, not as a penalty but as liquidated damages; provided however that due account shall be taken of any adjustment of the Job Order Completion Time as provided for elsewhere in this Contract. Page 16 of 103 Packet Pg. 225 4.1.c Value of Job Order Liquidated Damages $0 to $10,000 $100/Day $10,001 to $50,000 $250/Day Over $50,000 $500/Day Notice of Intent to The written notice by City identifying the highest ranked Award Proposers and indicating that the City intends to award a contract to that Proposer(s) or enter into negotiations with such Proposer(s). Page 17 of 103 Packet Pg. 226 4.1.c Notice to Proceed A written notice given by City to Contractor fixing the date on Which the start of Work will commence and on which Contractor shall start to perform its obligation within the completion time under the Contract Documents. Payment Bond The form of security approved by the City, furnished by the Contractor and its surety guaranteeing the complete and faithful payment of all labor, material, equipment, and any other services provided to the Work. Performance Bond The form of security approved by the City, furnished by the Contractor and its surety guaranteeing the complete and faithful performance of the construction of the Work as specified in the Contract Documents. Plans The concept or mental formulation for the Work. The plans may be represented graphically by drawings, by the written words within the Contract Documents, or both. City Furnished Materials or equipment furnished by the City which is to be Materials or incorporated into the Work by the Contractor. Equipment Page 18 of 103 Packet Pg. 227 4.1.c Product Data The illustrations, standard schedules, performance charts, brochures, diagrams, and other information furnished by the Contractor to illustrate a material, product, or system. Project The collective improvements to be constructed by the Contractor pursuant to issuance of a Job order. A Project will consist of one Job order and any Supplemental Job Orders issued. Project Manager The authorized representative of the City who is assigned immediate charge of the work of the project. Pr000sal The offer or proposal of the Contractor submitted in response to the City's Request For Proposal for the selection of Contractor(s). Usually referred to as the Contractor's Proposal Pr000ser Any individual, firm, partnership, corporation or combination thereof formally submitting a proposal for the work contemplated, or any portion thereof, acting directly or through an authorized representative. Provide The all-inclusive actions required to furnish, install, connect, adjust, test, and make ready for use or occupancy. Punch List Shall have the meanina set forth in Article 12. RFP The Request for Proposal issued by the City for the selection of the Contractor(s). Samples Physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. Schedule of Prices Means the Unit Prices set forth in the Contract Documents. Shop Drawings All drawings, diagrams, illustrations, brochures, standard schedules, performance charts, instructions, and other data which are specifically prepared by Contractor, a Subcontractor, manufacturer, fabricator, supplier or distributor to illustrate some portion of the Work, material or equipment. Specifications Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, performance requirements and workmanship as applied to the Work and certain administrative details applicable thereto. Page 19 of 103 Packet Pg. 228 4.1.c Subcontractor An individual, firm, or corporation having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the site. Sub -Subcontractor A Sub -Subcontractor is a business entity that has an agreement with a Subcontractor to perform a portion of the Work. The term Sub -Subcontractor means and includes the Sub -Subcontractor at all tiers. Substantial The Work or a specified part thereof has progressed to the Completion point where, in the opinion of Project Manager as evidenced by his/her certificate of Substantial Completion, the Detailed Scope of Work is sufficiently complete, in accordance with the Contract Documents, so that the Work or specified part can be utilized for the purposes for which it was intended; or if there be no such certificate issued, when final payment is due in accordance with section 12.4. The terms "substantially complete" and "substantially completed" as applied to any Work refer to Substantial Completion. Supplementary That portion of the Contract Documents that amends or Conditions supplements these General Conditions. Supplier A vendor, supplier, distributor, or materialman other than the Prime Contractor, which supplies material or equipment used in the performance of the Work. Page 20 of 103 Packet Pg. 229 4.1.c Suretv The company or association which is bound with and for the Contractor for the acceptable performance of the Contract and for its payment of all obligations arising out of the Contract Titles or Headings The titles or headings of the sections, divisions, parts, articles, paragraphs, or subparagraphs of the specifications are intended only for convenience of reference and shall not be considered as having any bearing on the interpretation of the text. Unit Prices The price published in the Construction Task Catalog° for a specific construction or construction related work task. Unit Prices for new Pre -priced Tasks can be established during the course of the Contract and added to the Construction Task Catalogs°. Each Unit Price is comprised of labor, equipment, and material costs to accomplish that specific Pre -priced Task Work The entire completed project or the various separately identifiable parts required to be furnished in accordance with the Contract Documents. Work is the result of performing services, furnishing labor, and furnishing and incorporating materials and equipment into the project, all as required by the Contract Documents. 1.1.1 Job Order Contracting Specific Definition of Terms: Adjustment Factor A competitively bid adjustment to be applied to the unit prices listed in the Construction Task Catalog°. Also known as a "coefficient." Base Term The initial period of the Contract and does not include any Option Terms. Construction Task Catalog° A comprehensive listing of construction related tasks together with a specific unit of measure and a published Unit Price. Detailed Scope of Work A document setting forth the work the Contractor is obligated to complete for a particular Job Order. Estimated Annual Value An estimate of the value of Job Orders that could be issued to the Contractor each year. Job Order A written order issued by the City, such as a Purchase Order, requiring the Contractor to complete the Detailed Scope of Work Page 21 of 103 Packet Pg. 230 4.1.c within the Job Order Completion Time for the Order Price. A project may consist of one or more Job Orders with one or more Supplemental Job Orders. [Job Order] CompletionTime The time within which the Contractor must complete the Detailed Scope of Work. [Job Order] Price The value of the approved Job Order Price Proposal and the amount the Contractor will be paid for completing a Job Order. [Job Orderl Price Proposal A price proposal prepared by the Contractor that includes the Pre -priced Tasks, Non-Prepriced Tasks, quantities and appropriate Adjustment Factors required to complete the Detailed Scope of Work. U Job Order Proposal A set of documents including at least: (a) Job Order L Price Proposal; (b) required drawings or sketches; (c) o list of anticipated Subcontractors and Materialmen; (d) 0 Construction schedule; and -a (e) other requested documents. a Joint Scope Meeting A site meeting to discuss the work before the Detailed ;n Scope of Work is finalized. Minimum Contract Value The minimum value of Job orders that the Contractor is U M 5 guaranteed the opportunity to perform under this Contract_ Non-Prepriced Task A task that is not set forth in the Construction Task U) Catalog®. M Normal Working Hours (General Facilities) Includes the hours from 7:00 a.m. to 4:00 p.m. Monday U through a Friday, except for City Holidays in Facilities classified as General by the City of Edmonds. E Normal Working Hours a a (Secured Facilities) Includes the hours from 7:00 a.m. to 4:00 p.m. Monday through Friday, except for City Holidays in Facilities classified as Secured by the City of Edmonds. Notice to Proceed A written notice issued by the City directing the Contractor to proceed with construction activities to complete the Job Order. Option Term An additional period of time beyond the Contract Term which extends the termination date of the Contract. Page 22 of 103 Packet Pg. 231 4.1.c Other than Normal Working Hours (General Facilities) Includes the hours of 4:01 p.m. to 6:59 a.m., Monday to Friday and all day Saturday, Sunday, and City Holidays in Facilities classified as General by the City of Edmonds. Other than Normal Working Hours L (Secured Facilities) Includes the hours of 4:01 p.m. to 6:59 a.m., Monday to 0 Friday and all day Saturday, Sunday, and City Holidays in Facilities classified as Secured by the City of Edmonds. O 0 Proposal Criteria Figure The amount determined in the Proposal Criteria Figure L 3 Calculation section of the Price Proposal, which is used a for the purposes of determining the lowest price. ;n 0 Pre -priced Task A task described in and for which a unit price is set forth U in the Construction Task Catalog®. Request for Proposal A written request to the Contractor to prepare a 0 L Proposal for the Detailed Scope of Work referenced therein. U) Supplemental Job Order A secondary Job Order developed after the initial Job Order has been issued for the purpose of changing, 0 deleting, or adding work to the initial Detailed Scope of Work, or changing the Job Order Completion Time. a Technical Specifications The written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. Unit Price The price published in the Construction Task Catalog® for a specific construction or construction related work task. Unit Prices for new Pre -priced Tasks can be established during the course of the Contract and added to the Construction Task Catalogs®. Each Unit Price is comprised of labor, equipment, and material costs to accomplish that specific Pre -priced Task. Work All materials, labor and use of tools, equipment, and services necessary by the Contractor and/or Subcontractor to complete the Job Order. Page 23 of 103 Packet Pg. 232 4.1.c 1.2 Definitions/Abbreviations AAR Association of American Railroads ACI American Concrete Institute AISC American Institute of Steel Construction ANSI American National Standards Institute APA American Plywood Association API American Petroleum Institute ARA American Railway Association AREA American Railway Engineering Association ASCE American Society of Civil Engineers ASHRAE American Society of Heating, Refrigeration and Air Conditioning Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials AWS American Welding Society COS City of Edmonds CPM Critical Path Method of Project Scheduling CRSI Concrete Reinforcing Steel Institute FAA Federal Aviation Administration FHWA Federal Highway Administration FM Factory Mutual FS Federal Specification FTA Federal Transit Administration IEEE Institute of Electrical and Electronics Engineers ISO Insurance Service Office JIC Joint Industrial Council NAAMM National Association of Architectural Metal Manufacturers NBFU National Board of Fire Underwriters NEC National Electrical Code NEMA National Electrical Manufacturer's Association NESC National Electrical Safety Code NIOSH National Institute of Occupational Safety and Health NFPA National Fire Protection Association OFCCP Office of Federal Contract Compliance Programs OSHA Occupational Safety and Health Act r 0 U L d L 0 0 L R Q L L 0 U cu U) M C aD E 0 Q r c E a Page 24 of 103 Packet Pg. 233 4.1.c PCA Portland Cement Association PSCAAPCA Puget Sound Clean Air Pollution Control Agency SAE Society of Automotive Engineers SMACNA Sheet Metal and Air Conditioning Contractors National Association SSPC Steel Structures Painting Council SWI Steel Window Institute UFC Uniform Fire Code UL Underwriter's Laboratory WISHA Washington Industrial Safety & Health Act Administration END ARTICLE 1 0 U L L 0 0 L 3 a L V L 0 U L U) CO) C N E t V fC a+ Q r C N E L V a2 a+ Q Page 25 of 103 Packet Pg. 234 4.1.c ARTICLE 2 PRELIMINARY MATTERS 2.1 City Operations The City is an operating facility which will continue in full operation throughout the term of this Contract. Where facility operations conflict with those of the Contractor, the operations of the facility will take precedence over those of the Contractor. It shall be the sole responsibility of the Contractor to schedule and coordinate its activities with those of the facility to assure minimum disruption of facility operations. 2.2 Starting the Job Order (Notice to Proceed) The Contractor shall show evidence that work has commenced on the Job Order within seven (7) days from the effective date of the Notice to Proceed. Work in this case is not limited to physical work at the project site. Work started prior to the effective date stated in the Notice to Proceed shall be at the Contractor's risk. 2.3 Job Order Completion Time 2.3.1 The Job Order Completion Time will commence to run on the effective date stated in the Notice to Proceed. The City Contract Administrator will transmit an executed copy of the Job Order to the Contractor as well as a Notice to Proceed. 2.3.2 The Job Order Completion Time is that period of time allotted in the Job Order, as adjusted, for the Contractor to achieve Substantial and/or Final Completion of the Detailed Scope of Work. 2.3.3 The term "day" as used in the Contract Documents shall mean a calendar day unless otherwise specifically designated. 2.3.4 Substantial Completion occurs when the City can use the Work for the use for which it is intended, and when all required documentation has been properly submitted to the City in accordance with the Job Order. Such documentation shall include but is not necessarily limited to: a. Maintenance and Operations manuals; b. Warranties; and c. Submittals required by the Specifications. 2.3.5 Final Completion occurs when all requirements of the Job Order and Contract Documents have been properly and completely fulfilled including but not limited to: a. Completion of re -inspection and City approval of all Punch List items; b. Submittal of final invoice and approval by the Contract Administrator and Project Manager; c. Submittal of all properly completed as -built record drawings; and d. Submittal of any other documents required by the Job Order. Page 26 of 103 Packet Pg. 235 4.1.c 2.3.6 Final Acceptance is the formal action of the City accepting the Work as complete. 2.3.7 Progress and Completion a. All time limits stated in the Job Orders are of the essence of this Contract. b. The Contractor shall begin the Work on the date indicated in the Notice to Proceed and shall diligently prosecute the Work with adequate equipment and forces in order to bring the Work to completion within the Job Order Completion Time. 2.4 Extension of Time Any extension of Job Order Completion Time must have the written approval of the Project Manager/City and must conform to the procedures set forth in Article 10.4. 2.5 Before Starting Work 2.5.1 Before undertaking each part of the Work, the Contractor shall carefully study and compare the Detailed Scope of Work and check and verify pertinent figures shown thereon and all applicable field measurements. The Contractor shall promptly report in writing to the Project Manager any conflict, error or discrepancy which the Contractor may discover; however, the Contractor shall not be liable to the City for failure to report any conflict, error or discrepancy in the Detailed Scope of Work, Drawings or Specifications, unless the Contractor had actual knowledge thereof or should reasonably have known thereof. 2.5.2 If requested, within five (5) days after the effective date of the Notice to Proceed and prior to start of Work (unless otherwise specified in the General Requirements), the Contractor shall submit to the Project Manager for review a preliminary Schedule of the Values of the work. Each bid item shall be broken down to its basic elements. The cost breakdown for both lump sum and unit price estimates shall include: a. Labor; b. Materials; c. Equipment; d. Overhead, profit and taxes; e. Other factors; f. Time required. 2.5.3 If requested, within ten (10) days after the effective date of the Notice to Proceed and prior to start of Work, unless otherwise specified in the General Requirements, the Contractor is to submit to the Project Manager for review an estimated Progress Schedule indicating the starting and completion dates of the various stages of the Work and a Preliminary Schedule of Shop Drawings submissions. The Schedule should include a bar chart. The Contractor may use a commercial scheduling program such as the "Microsoft Project" or equal. All submissions of schedule Page 27 of 103 Packet Pg. 236 4.1.c information to the Project Manager or other City representatives are to be provided in hard copy format and electronic format. 2.6 Preconstruction Conference Within seven (7) days after the effective date of the Job Order, but before the Contractor starts the Work at the site, unless otherwise specified in the Contract Documents, a conference will be held with the Contractor, Project Manager, Contract Administrator and others as determined by the Project Manager for review of the schedules to establish procedures for handling Shop Drawings and other submittals, for processing Applications for Payment, and to establish a working understanding among the parties as to the Work. END ARTICLE 2 Page 28 of 103 Packet Pg. 237 4.1.c ARTICLE 3 CONTRACT DOCUMENTS: INTENT, CORRELATION, EXECUTION OF AND OWNERSHIP OF CONTRACT DOCUMENTS 3.1 Intent 3.1.1 The Contract Documents comprise the entire Contract between the City and the Contractor concerning the Work. 3.1.2 The Detailed Scope of Work is complementary; what is called for by one is as binding as if called for by all. 3.1.3 It is the intent of the Detailed Scope of Work to describe a complete Project or part thereof or performance requirements to be completed in accordance with the Contract Documents. Any Work that may reasonably be inferred from the Detailed Scope of Work and the Contractor's Price Proposal as being required to produce the intended result shall be supplied whether or not it is specifically called for. Words, which have a well-known technical or trade meaning and are used to describe Work, materials or equipment, shall be interpreted in accordance with such meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the code of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual or code in effect at the time of Price Proposal Submittal or on the effective date of the Job Order. However, no provision of any referenced standard specification, manual or code whether or not specifically incorporated by reference in the Detailed Scope of Work shall change the duties and responsibilities of the City or the Contractor, or any of their agents or employees from those set forth in the Contract Documents. Clarifications and interpretations of the Detailed Scope of Work shall be issued by the Project Manager as provided for in section 9.2. 3.2 Correlation of the Contract Documents 3.2.1 Each Contract Document is an essential part of the Contract between the City and the Contractor. The Contract Documents are intended to be complementary and prescribe and provide for all Work required by the Job Orders. Anything mentioned in the Specifications and not shown in the Detailed Scope of Work, or shown in the Drawings and not mentioned in the Specifications, shall be of like effect as if shown or mentioned in both. Any Work, materials or equipment that has not been specifically included in the Detailed Scope of Work but which is reasonably required to produce the intended result shall be provided by the Contractor as though it had been specifically included. 3.2.2 If there are discrepancies between the various Contract Documents, Specifications shall govern over Conditions and Drawings, Drawings shall govern over Conditions, larger scale drawings shall govern over smaller scale drawings, Supplementary Conditions shall govern over General Conditions, computed dimensions shall govern over scaled dimensions, and specific descriptions shall govern over general ones. Page 29 of 103 Packet Pg. 238 4.1.c 3.2.3 In the event of a conflict between the Detailed Scope of Work or the Contract Documents and applicable laws, codes, ordinances, regulations or orders of governmental authorities having jurisdiction over the Work or any portion thereof, or in the event of any conflict between such applicable laws, codes, ordinances, regulations, or orders, the most stringent requirements of any of the above shall govern and be considered as a part of this Contract in order to afford the City the maximum benefits thereof. 3.3 No Warranties by the City 3.3.1 No information derived from inspection of records or reports of investigation concerning the Work or conditions at the site(s) of the Work made or provided by the City will in any way relieve the Contractor from its responsibility for properly performing its obligations under the Contract Documents. Such records and reports are provided solely for the convenience of the Contractor with no warranties whatsoever, express or implied, by the City. Such records and reports are not part of the Contract Documents. The Contractor shall make its own conclusions and interpretations from the data supplied, information available from other sources, and the Contractor's own observations. 3.3.2 The Contract Documents will be governed by the laws of the State of Washington. END ARTICLE 3 Page 30 of 103 Packet Pg. 239 4.1.c ARTICLE 4 PHYSICAL CONDITIONS AND REFERENCE POINTS 4.1 Unforeseen Physical Conditions The Contractor shall promptly notify the Project Manager in writing of any latent physical conditions at the site or in an existing structure differing materially from those indicated or referred to in the Detailed Scope of Work. The Project Manager will promptly review those conditions. If the Project Manager finds that there are latent physical conditions which differ materially from those intended in the Detailed Scope of Work, the Project Manager will prepare a Supplementary Job Order incorporating modifications to plans and specifications as necessary to proceed with and complete the Work. END ARTICLE 4 Page 31 of 103 Packet Pg. 240 4.1.c ARTICLE 5 BONDS AND INSURANCE 5.1 Performance Bond The Contractor shall furnish a duly executed Performance Bond upon a form provided by the City within ten (10) calendar days following receipt of the Notice of Award. The Bond shall be executed by a licensed surety which is registered with the Washington State Insurance Commissioner and the surety's name shall appear in the current Authorized Insurance Company List for the State of Washington published by the Office of the Insurance Commissioner, and must be approved by the U.S. Department of Treasury as evidenced by a listing in the Federal Register. In addition, the surety must be rated "A-, FSC (6)" or higher by A.M. Best Rating Guide. The penal amount of the bond shall be in an amount equal to the amount stated in the Proposal Requirements and conditioned upon the faithful performance of the Contract by the Contractor. If the Surety on any Performance Bond furnished by the Contractor is declared bankrupt or becomes insolvent, or its right to do business is terminated in the state of Washington, or it ceases to meet the requirements as stated above, the Contractor shall within five (5) days thereafter substitute another Bond and Surety. The City reserves the right to approve or reject any substitute Bond and Surety. The Performance Bond will initially be in the penal sum equal to Two Million Dollars ($2,000,000). In the event the parties agree to exercise the option to extend the Contract, or if the cumulative amount of Work issued and not yet completed and accepted exceeds such amount, the Contractor shall deliver a new Performance Bond or a rider as required by the City. Additionally, the Contractor shall also provide a signed "Letter of Bondability" stating that the Contractor is able to bond to the possible increased Contract Value of Four Million Dollars ($4,000,000). For a Federally Funded Work Order, the Contractor may be required to submit an additional performance bond in accordance with the applicable Federal Contract Clauses 5.2 Payment Bond The Contractor shall also furnish a duly executed Payment Bond upon a form provided by the City, within ten (10) calendar days following receipt of the Notice of Award. The Bond shall be executed by a licensed surety which is registered with the Washington State Insurance Commissioner and the surety's name shall appear in the current Authorized Insurance Company List in the State of Washington published by the Office of the Insurance Commissioner, and must be approved by the U.S. Department of Treasury as evidenced by a listing in the Federal Register. In addition, the surety must be rated "A-, FSC (6)" or higher by A.M. Best Rating Guide. The penal amount of the bond shall be in the amount stated in the Proposal Requirements and conditioned upon the payment by the Contractor to all laborers, mechanics, Subcontractors, suppliers, and all persons who shall supply for the performance of the Work covered by this Contract. If the Surety on any Payment Bond furnished by the Contractor is declared bankrupt or becomes insolvent, or its right to do business is terminated in the state of Washington, or Page 32 of 103 Packet Pg. 241 4.1.c 5.3 it ceases to meet the requirements as stated above, the Contractor shall within five (5) days thereafter substitute another Bond and Surety. The City reserves the right to approve or reject any substitute Bond and Surety. The Payment Bond will initially be in the penal sum equal to Two Million Dollars ($2,000,000). In the event the parties agree to exercise the option to extend the Contract, or if the cumulative amount of Work issued and not yet completed and accepted exceeds such amount, the Contractor shall deliver a new Payment Bond or a rider as required by the City. Additionally, The Contractor shall also provide a signed "Letter of Bondability" stating that the Contractor is able to bond to the possible increased Contract Value of Four Million Dollars ($4,000,000). For a Federally Funded Work Order, the Contractor may be required to submit an additional payment bond in accordance with the applicable Federal Contract Clauses. Contractor's Liability Insurance 5.3.1 The Contractor shall purchase and maintain such commercial general liability and other insurance as will provide protection from claims set forth below which may arise out of or result from the Contractor's performance of the Work and the Contractor's other obligations under the Contract Documents, whether such performance is by the Contractor, by any Subcontractor, by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. a. Commercial General Liability Insurance on an Occurrence Basis in an amount not less than Two Million Dollars ($2,000,000) per occurrence and at least Five Million Dollars ($5,000,000) in the annual aggregate, including but not limited to: 1. Bodily Injury Liability; 2. Property Damage Liability (to include explosion, collapse and underground); 3. Blanket Contractual Liability; 4. Premises/Operations (including off -site operations); 5. Broad Form Property Damage Liability; 6. Products: Completed Operations Liability; 7. Personal Injury Liability; 8. Liability for Property of Others in the Care, Custody and Control of the Contractor. Claims Covered: The Contractor shall purchase and maintain commercial general liability insurance, covering all operations by or on behalf of the Contractor, on an occurrence basis, against: 1. claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees. 2. claims for damages insured by reasonably available personal injury liability coverage. Page 33 of 103 Packet Pg. 242 4.1.c 3. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefrom. Form and Content: The Contractor's commercial liability policy shall be written on a 1996 (or later) ISO commercial general liability form (occurrence form) and include the following coverages and endorsements: 1. Products and completed operations coverage: a. Such insurance shall be maintained for three (3) years after final payment. b. The Contractor shall furnish the City and each other additional insured (as identified in the Supplementary Conditions or elsewhere in the Contract) evidence of continuation of such insurance at final payment and three (3) years thereafter. 2. Blanket contractual liability coverage, to the extent permitted by law, including but not limited to coverage of the Contractor's contractual indemnity obligations in Section 6.32 ("Indemnification"). 3. Broad form property damage coverage. 4. Severability of interest. 5. Underground, explosion, and collapse coverage. 6. Personal injury coverage. 7. Additional insured endorsements that include both ongoing operations and products and completed operations coverage through ISO Endorsements CG 20 10 10 01 and CG 20 37 10 01 (together); or CG 20 10 07 04 and CG 20 37 07 04 (together); or their equivalent. 8. For design professional additional insureds, ISO Endorsement CG 20 32 07 04, "Additional Insured —Engineers, Architects or Surveyors Not Engaged by the Named Insured" or its equivalent. Commercial General Liability Insurance shall be written on Insurance Services Office ("ISO") occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop gap liability, independent contractors, products- completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The City shall be named an insured under the Contractor's Commercial General Liability insurance policy with respect to the Work performed for the City using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage b. Comprehensive Automobile Liability Insurance: The Contractor shall purchase and maintain automobile liability insurance against claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance, or use of any motor vehicle. The automobile liability policy shall be written on an occurrence basis. The Contractor shall provide proof of insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence, including but not limited to: 1. Bodily Injury Liability; 2. Property Damage Liability; 3. Personal Injury Liability; 4. Owned and Non -Owned Auto Liability; 5. Hired and Borrowed Auto Liability. a Page 34 of 103 Packet Pg. 243 4.1.c Comprehensive Automobile Liability Insurance covering all owned, non -owned, hired and leased vehicles as well as employee vehicles utilized in performance or the Work or at the Work site shall be provided. Coverage shall be written on ISO form CA 00 01 or a substitute form providing equivalent liability coverage. The insurance policy shall be endorsed to provide contractual liability coverage. c. Worker's Compensation as required by Washington law and Employer's Liability Insurance (Stop Gap) with limits not less than One Million Dollars ($1,000,000) per occurrence. If the City authorizes sublet work, the Contractor shall require each subcontractor to provide Worker's Compensation Insurance for its employees, unless the Contractor covers such employees. The Contractor shall purchase and maintain workers' compensation and employer's liability insurance for: 1. claims under workers' compensation, disability benefits, and other similar employee benefit acts; 2. United States Longshoreman and Harbor Workers' Compensation Act and Jones Act coverage (if applicable); 3. claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees (by stop -gap endorsement in monopolist worker's compensation states); and 4. Foreign voluntary worker compensation (if applicable). The Contractor shall comply with the following conditions and procure and keep in force during the term of this Contract, at the Contractor's own cost and expense, the policies of insurance with companies authorized to do business in the State of Washington, which are rated at least "A" or better and with a numerical rating of no less than VI I, by A.M. Best Company and which are acceptable to the City. The Contractor's insurance coverage shall be primary insurance as respect to the City. Any insurance, self-insurance or other coverage maintained by the City shall be for the protection of the City and excess to the Contractor's insurance and shall not contribute with it. The above liability policies shall be endorsed to contain a provision that the policy shall not be canceled or materially changed without thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of the Contractor to furnish the required insurance during the term of this Contract. The Insurer or his/her agent will furnish to the Contract Administrator upon request, prior to any Work being performed, a copy of any policy cited above, certified to be a true and complete copy of the original. The Contractor shall provide the Contract Administrator, prior to any Work being performed, a Certificate of Insurance and additional insured endorsement(s) acceptable to the City Attorney evidencing the above -required insurance(s) and naming the City of Edmonds, its officers, employees and agents as Additional Insureds on the Commercial General Liability Insurance policy and the Business Automobile Liability Insurance policy with respect to the operations performed and services provided under this Contract; and that such insurance shall apply as primary insurance on behalf of such Additional Insureds. The City shall be named as an Additional Insured by endorsement using ISO Form CG 2010 or equivalent. Receipt by the City of any certificate showing less coverage than required is not a waiver of the Contractor's obligations to fulfill the requirements. Page 35 of 103 Packet Pg. 244 4.1.c 5.3.2 Contractor's Insurance for Other Losses. The Contractor shall assume full responsibility for all loss or damage from any cause whatsoever to any tools, the Contractor's employee owned tools, machinery, equipment or motor vehicles owned or rented by the Contractor, or the Contractor's agents, suppliers or subcontractors as well as to any temporary structures, scaffolding and protective fences. 5.3.3 General Provisions a. The City and the Contractor shall obtain and maintain insurance as required in this Section and in the Supplementary Conditions. b. All insurance required by the Contract to be purchased and maintained by the City or the Contractor shall be obtained from insurance companies that are duly licensed or authorized, in the state orjurisdiction in which the Project is located, to issue insurance policies for the required limits and coverages. Unless a different standard is indicated in the Supplementary Conditions, all companies that provide insurance policies required under this Contract shall have an A.M. Best rating of A-VII or better. c. The Contractor shall deliver to the City, with copies to each named insured and additional insured (as identified in this Section, in the Supplementary Conditions, or elsewhere in the Contract), certificates of insurance establishing that the Contractor has obtained and is maintaining the policies, coverages, and endorsements required by the Contract. Upon request by the City or any other insured, the Contractor shall also furnish other evidence of such required insurance, including but not limited to copies of policies and endorsements, and documentation of applicable self -insured retentions and deductibles. The Contractor may block out (redact) any confidential premium or pricing information contained in any policy or endorsement furnished under this provision. d. The City shall deliver to the Contractor, with copies to each named insured and additional insured (as identified in this Section, the Supplementary Conditions, or elsewhere in the Contract), certificates of insurance establishing that the City has obtained and is maintaining the policies, coverages, and endorsements required of the City by the Contract (if any). Upon request by the Contractor or any other insured, the City shall also provide other evidence of such required insurance (if any), including but not limited to copies of policies and endorsements, and documentation of applicable self -insured retentions and deductibles. The City may block out (redact) any confidential premium or pricing information contained in any policy or endorsement furnished under this provision. e. Failure of the City or the Contractor to demand such certificates or other evidence of the other party's full compliance with these insurance requirements, or failure of the City or the Contractor to identify a deficiency in compliance from the evidence provided, shall not be construed as a waiver of the other party's obligation to obtain and maintain such insurance. f. If either party does not purchase or maintain all of the insurance required of such party by the Contract, such party shall notify the other party in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. g. If the Contractor has failed to obtain and maintain required insurance, the City may exclude the Contractor from the site, impose an appropriate set-off against payment, and exercise the City's termination rights under Article 13. L 0 U a� 0 0 3 a `0 r U 0 U L 0 U) CO) a� E U a c E U a Page 36 of 103 Packet Pg. 245 4.1.c h. Without prejudice to any other right or remedy, if a party has failed to obtain required insurance, the other party may elect to obtain equivalent insurance to protect such other party's interests at the expense of the party who was required to provide such coverage, and the Contract Price shall be adjusted accordingly. i. The City does not represent that insurance coverage and limits established in this Contract necessarily will be adequate to protect the Contractor or the Contractor's interests. j. The insurance and insurance limits required herein shall not be deemed as a limitation on the Contractor's liability under the indemnities granted to the City and other individuals and entities in the Contract. k. General provisions: The policies of insurance required by this Paragraph 5.3.3 shall: i. include at least the specific coverages provided in this Article; ii. be written for not less than the limits of liability provided in this Article and in the Supplementary Conditions, or required by Laws or Regulations, whichever is greater; iii. contain a provision or endorsement that the coverage afforded will not be canceled, materially changed, or renewal refused until at least ten (10) days prior written notice has been given to the Contractor. Within three (3) days of receipt of any such written notice, the Contractor shall provide a copy of the notice to the City and each other insured under the policy; iv. remain in effect at least until final payment (and longer if expressly required in this Article) and at all times thereafter when the Contractor may be correcting, removing, or replacing defective Work as a warranty or correction obligation, or otherwise, or returning to the site to conduct other tasks arising from the Contract Documents; and v. be appropriate for the Work being performed and provide protection from claims that may arise out of or result from the Contractor's performance of the Work and the Contractor's other obligations under the Contract Documents, whether it is to be performed by the Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable. vi. The coverage requirements for specific policies of insurance must be met by such policies, and not by reference to excess or umbrella insurance provided in other policies. Umbrella or excess liability: The Contractor shall purchase and maintain umbrella or excess liability insurance written over the underlying employer's liability, commercial general liability, and automobile liability insurance described in the paragraphs above. Subject to industry - standard exclusions, the coverage afforded shall follow form as to each and every one of the underlying policies. Contractor's pollution liability insurance: The Contractor shall purchase and maintain a policy covering third -party injury and property damage claims, including clean-up costs, as a result of pollution conditions arising from the Contractor's operations and completed operations. This insurance shall be maintained for no less than three (3) years after final completion. Additional insureds: The Contractor's commercial general liability, automobile liability, umbrella or excess, and pollution liability policies shall include and list as additional insureds the City and the Engineer, and any individuals or entities identified in the Supplementary L 0 U a� 0 0 3 a L0 r U 0 U L 0 U) CO) a� E M U a c E M U a Page 37 of 103 Packet Pg. 246 4.1.c Conditions; include coverage for the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of all such additional insureds; and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby (including as applicable those arising from both ongoing and completed operations) on a non-contributory basis. The Contractor shall obtain all necessary endorsements to support these requirements. Contractor's professional liability insurance: If the Contractor will provide or furnish professional services under this Contract, through a delegation of professional design services or otherwise, then the Contractor shall be responsible for purchasing and maintaining applicable professional liability insurance. This insurance shall provide protection against claims arising out of performance of professional design or related services, and caused by a negligent error, omission, or act for which the insured party is legally liable. It shall be maintained throughout the duration of the Contract and for a minimum of two (2) years after Substantial Completion. If such professional design services are performed by a Subcontractor, and not by the Contractor itself, then the requirements of this paragraph may be satisfied through the purchasing and maintenance of such insurance by such Subcontractor. 5.3.4 Citv's Liabilitv Insurance a. In addition to the insurance required to be provided by the Contractor under Paragraph 5.3.3, the City, at the City's option, may purchase and maintain at the City's expense the City's own liability insurance as will protect the City against claims which may arise from operations under the Contract Documents. b. The City's liability policies, if any, operate separately and independently from policies required to be provided by the Contractor, and the Contractor cannot rely upon the City's liability policies for any of the Contractor's obligations to the City, the Engineer, or third parties. 5.3.5 Proaerty Insurance a. Builder's Risk: Unless otherwise provided in the Supplementary Conditions and on a Job Order by Job Order basis as required by the City, the Contractor shall purchase and maintain builder's risk insurance upon the Work on a completed value basis, in the amount of the full insurable replacement cost thereof (subject to such deductible amounts as may be provided in the Supplementary Conditions or required by Laws and Regulations). This insurance shall: i. include the City and the Contractor as named insureds, and all Subcontractors, and any individuals or entities required by the Supplementary Conditions to be insured under such builder's risk policy, as insureds or named insureds. For purposes of the remainder of this Paragraph 5.3.5 and any corresponding Supplementary Conditions, the parties required to be insured shall collectively be referred to as "insureds." ii. be written on a builder's risk "all risk" policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire; lightning; windstorm; riot; civil commotion; terrorism; vehicle impact; aircraft; smoke; theft; vandalism and malicious mischief; mechanical breakdown, boiler explosion, and artificially generated electric current; earthquake; volcanic activity, and other earth 0 U L E. E. 0 0 L a `o r L 0 U 0 U) M a� E M U a c E M U a Page 38 of 103 Packet Pg. 247 4.1.c movement; flood; collapse; explosion; debris removal; demolition occasioned by enforcement of Laws and Regulations; water damage (other than that caused by flood); and such other perils or causes of loss as may be specifically required by the Supplementary Conditions. If insurance against mechanical breakdown, boiler explosion, and artificially generated electric current; earthquake; volcanic activity, and other earth movement; or flood, are not commercially available under builder's risk policies, by endorsement or otherwise, such insurance may be provided through other insurance policies acceptable to the City and the Contractor. iii. cover, as insured property, at least the following: (a) the Work and all materials, supplies, machinery, apparatus, equipment, fixtures, and other property of a similar nature that are to be incorporated into or used in the preparation, fabrication, construction, erection, or completion of the Work, including City - furnished or assigned property; (b) spare parts inventory required within the scope of the Contract; and (c) temporary works which are not intended to form part of the permanent constructed Work but which are intended to provide working access to the site, or to the Work under construction, or which are intended to provide temporary support for the Work under construction, including scaffolding, form work, fences, shoring, falsework, and temporary structures. iv. cover expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects). V. extend to cover damage or loss to insured property while in temporary storage at the site or in a storage location outside the site (but not including property stored at the premises of a manufacturer or Supplier). vi. extend to cover damage or loss to insured property while in transit. vii. allow for partial occupation or use of the Work by the City, such that those portions of the Work that are not yet occupied or used by the City shall remain covered by the builder's risk insurance. viii. allow for the waiver of the insurer's subrogation rights, as set forth below. ix. provide primary coverage for all losses and damages caused by the perils or causes of loss covered. X. not include a co-insurance clause. A. include an exception for ensuing losses from physical damage or loss with respect to any defective workmanship, design, or materials exclusions. xii. include performance/hot testing and start-up. xiii. be maintained in effect, subject to the provisions herein regarding Substantial Completion and partial occupancy or use of the Work by the City, until the Work is complete. b. Notice of Cancellation or Change: All the policies of insurance (and the certificates or other evidence thereof) required to be purchased and maintained in accordance with this Paragraph 5.3.5 will contain a provision or endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until at least ten (10) days prior written notice has been given to the purchasing policyholder. Within three (3) days of receipt of any such written notice, the purchasing policyholder shall provide a copy of the notice to each other insured. L 0 U a� 0 0 3 a `o r 0 U L 0 U) M a� E M U a c E M U a Page 39 of 103 Packet Pg. 248 4.1.c c. Deductibles: The purchaser of any required builder's risk or property insurance shall pay for costs not covered because of the application of a policy deductible. d. Partial Occupancy or Use by the City: If the City will occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work as provided in Paragraph 12.4 and 12.5, then the City (directly, if it is the purchaser of the builder's risk policy, or through the Contractor) will provide notice of such occupancy or use to the builder's risk insurer. The builder's risk insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy; rather, those portions of the Work that are occupied or used by the City may come off the builder's risk policy, while those portions of the Work not yet occupied or used by the City shall remain covered by the builder's risk insurance. e. Additional Insurance: If the Contractor elects to obtain other special insurance to be included in or supplement the builder's risk or property insurance policies provided under this Paragraph 5.3.5, it may do so at the Contractor's expense. Insurance of Other Property: If the express insurance provisions of the Contract do not require or address the insurance of a property item or interest, such as tools, construction equipment, or other personal property owned by the Contractor, a Subcontractor, or an employee of the Contractor or a Subcontractor, then the entity or individual owning such property item will be responsible for deciding whether to insure it, and if so in what amount. The Contractor certifies that it is aware of the provisions of Title 51 of the Revised Code of Washington which requires every employer to be insured against liability of Workers' Compensation, or to undertake self-insurance in accordance with the provisions of that Title. The Contractor shall comply with the provisions of Title 51 of the Revised Code of Washington before commencing the performance of any Work. The Contractor shall provide the Contract Administrator with evidence of Workers' Compensation Insurance (or evidence of qualified self-insurance) before any Work is commenced. In case of breach of any provision of this section, the City may, at its option and with no obligation to do so, provide and maintain at the expense of the Contractor, such types of insurance in the name of the Contractor, and with such insurers, as the City may deem proper, and may deduct the cost of providing and maintaining such insurance from any sums which may be found or become due to the Contractor under this Contract or may demand the Contractor to promptly reimburse the City for such cost. 5.4 Contractor Pollution Liability 5.4.1 If a Job Order requires Contractor Pollution Liability, the successful Contractor(s) will be required to provide Contractor Pollution Liability with minimum limits of liability of not less than One Million Dollars ($1,000,000) per claim or occurrence and Two Million Dollars ($2,000,000) aggregate per policy period of one (1) year. L 0 U a� 0 0 3 a Page 40 of 103 Packet Pg. 249 4.1.c If the Contractor Pollution Liability coverage is written on a claims -made form: a. The retroactive date must be shown and must be before the date of the Contract or the start of Work; b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Work; c. If coverage is canceled or non -renewed and not replaced with another claims - made policy form with a retroactive date prior to the Contract Date the Contractor must purchase an extended period coverage for a minimum of five (5) years after the completion of the Work; d. A copy of the claims reporting requirements must be submitted to the City for review. 5.5 Waiver of Rights 5.5.1 All policies purchased in accordance with Paragraph 5.3.5, expressly including the builder's risk policy, shall contain provisions to the effect that in the event of payment of any loss or damage the insurers will have no rights of recovery against any insureds thereunder, or against the Engineer or its consultants, or their officers, directors, members, partners, employees, agents, consultants, or subcontractors. The City and the Contractor waive all rights against each other and the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against the Engineer, its consultants, all Subcontractors, all individuals or entities identified in the Supplementary Conditions as insureds, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, under such policies for losses and damages so caused. None of the above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by the City or the Contractor as trustee or fiduciary, or otherwise payable under any policy so issued. 5.5.2 The City waives all rights against the Contractor, Subcontractors, and the Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, for: a. loss due to business interruption, loss of use, or other consequential loss extending beyond direct physical loss or damage to the City's property or the Work caused by, arising out of, or resulting from fire or other perils whether or not insured by the City; and b. loss or damage to the completed Project or part thereof caused by, arising out of, or resulting from fire or other insured peril or cause of loss covered by any property insurance maintained on the completed Project or part thereof by the City during partial occupancy or use, after Substantial Completion, or after final payment. Page 41 of 103 Packet Pg. 250 4.1.c c. Any insurance policy maintained by the City covering any loss, damage or consequential loss referred to in Paragraph 5.5.2(b) shall contain provisions to the effect that in the event of payment of any such loss, damage, or consequential loss, the insurers will have no rights of recovery against the Contractor, Subcontractors, or the Engineer, or the officers, directors, members, partners, employees, agents, consultants, or subcontractors of each and any of them. 5.5.3 The Contractor shall be responsible for assuring that the agreement under which a Subcontractor performs a portion of the Work contains provisions whereby the Subcontractor waives all rights against the City, the Contractor, all individuals or entities identified in the Supplementary Conditions as insureds, the Engineer and its consultants, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils or causes of loss covered by builder's risk insurance and any other property insurance applicable to the Work. 5.6 Receipt and Application of Property Insurance Proceeds 5.6.1 Any insured loss under the builder's risk and other policies of insurance required by Paragraph 5.3.5 will be adjusted and settled with the named insured that purchased the policy. Such named insured shall act as fiduciary for the other insureds and give notice to such other insureds that adjustment and settlement of a claim is in progress. Any other insured may state its position regarding a claim for insured loss in writing within fifteen (15) days after notice of such claim. 5.6.2 Proceeds for such insured losses may be made payable by the insurer either jointly to multiple insureds, or to the named insured that purchased the policy in its own right and as fiduciary for other insureds, subject to the requirements of any applicable mortgage clause. A named insured receiving insurance proceeds under the builder's risk and other policies of insurance required by Paragraph 5.3.5 shall distribute such proceeds in accordance with such agreement as the parties in interest may reach, or as otherwise required under the dispute resolution provisions of this Contract or applicable Laws and Regulations. 5.6.3 If no other special agreement is reached, the damaged Work shall be repaired or replaced, the money so received applied on account thereof, and the Work and the cost thereof covered by Supplemental Job Order, if needed. END ARTICLE 5 Page 42 of 103 Packet Pg. 251 4.1.c ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES 6.1 Examination of the Site of Work and Detailed Scope of Work By submitting a Job Order Proposal for a Job Order, the Contractor represents that it has carefully examined and investigated the site(s) of the Work, including material site(s), and the Detailed Scope of Work. The submission of its Job Order Proposal shall be conclusive evidence that the Contractor represents and acknowledges that it has made such examinations and investigations and is satisfied as to the conditions to be encountered in the performance of the Work, including the character, quantity, quality, and Detailed Scope of the Work, safety precautions to be undertaken, the quantities and qualities of materials to be supplied, and equipment and labor to be used, the requirements of the Detailed Scope of Work and how all such requirements correlate to the conditions at the site(s) of the Work. The Contractor shall determine from careful examination of the Detailed Scope of Work and the site of the Work, the methods, materials, labor, and equipment required to perform the Work in full, and the Contractor shall reflect the same in its Proposal. 6.2 Error, Inconsistency, Omission or Variance in the Contract Documents The Contractor shall promptly report to the Project Manager and/or the Contract Administrator any error, inconsistency, omission, or variance from applicable laws, statutes, codes, ordinances, or regulations which it discovers in the Detailed Scope of Work. If the Contractor promptly reports such discovery prior to commencement of any portion of the Work affected by any such error, inconsistency, omission, or variance, the Contractor shall not be liable to the City for damage resulting from such error, inconsistency, omission, or variance. If, however, the Contractor fails either to carefully study and compare the Detailed Scope of Work, or to promptly report the discovery of any error, inconsistency, omission, or variance known or believed by the Contractor to exist, the Contractor shall assume full responsibility therefore and shall bear all costs, liabilities and damages attributable to such error, inconsistency, omission, or variance. 6.3 Supervision 6.3.1 The Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Detailed Scope of Work. The Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of Work. The Contractor shall be responsible to see that the finished Work complies accurately with the Detailed Scope of Work. 6.3.2 The Contractor will provide a competent resident supervisor who understands the contract and the task being performed to continuously oversee the contract work. The supervisor will not be replaced without written notice to the Project Manager except under extraordinary circumstances. The supervisor will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the supervisor shall be as binding as if given to the Contractor. Page 43 of 103 Packet Pg. 252 4.1.c a. Any supervisor who repeatedly fails to follow the Project Manager's written or oral orders, directions, instructions, or determinations, or who has proven to be incompetent, careless, or negligent shall be subject to removal from the Work site. Upon the written request of the Project Manager or the Contract Administrator, the Contractor shall immediately remove such supervisor and name a replacement in writing. 6.3.3 The Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform the Work as required by the Detailed Scope of Work. The Contractor shall at all times maintain good discipline and order at the site. 6.3.4 Non-compliance with the Project Manager's request to remove and replace personnel at any level shall be grounds for terminating the Contract under the terms of Article 13. 6.3.5 The Contractor shall be fully responsible to the City for the acts or omissions of its employees, agents, Subcontractors, Sub -Subcontractors, suppliers, and their agents and employees, and all other persons who are to perform any of the Work. 6.3.6 The Contractor may not assign any portion of this Contract without the City's prior written consent. 6.4 Labor, Materials, and Equipment 6.4.1 The Contractor shall furnish all materials, equipment, labor, transportation, equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, and sanitary facilities and all other facilities and incidentals necessary for the execution, testing, initial operation and completion of the Work. 6.4.2 All materials and equipment shall be of good quality and new, except as otherwise provided in the Detailed Scope of Work. If required by the Project Manager, the Contractor shall furnish satisfactory evidence (including reports or required tests) as to the kind and quality of materials and equipment. 6.4.3 All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturer, fabricator, supplier or distributor, except as otherwise provided in the Contract Documents. 6.4.4 For equipment and materials that are permanently incorporated in the Work, the Contractor will provide to the Project Manager all Owners Manuals and Operating Instructions furnished by the equipment or material manufacturer. Page 44 of 103 Packet Pg. 253 4.1.c 6.5 Equivalent Materials and Equipment, "or Equal" 6.5.1 Whenever materials or equipment are specified or described in the Detailed Scope of Work, Drawings, Construction Task Catalog° or Specifications by using the name of a proprietary item or the name of a particular manufacturer, fabricator, supplier or distributor, the naming of the item is intended to establish the type, function, and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other manufacturers, fabricators, suppliers or distributors may be accepted by the Project Manager if sufficient information is submitted by the Contractor to allow the Project Manager to determine that the material or equipment proposed is equivalent to that named. The procedure for review by the Project Manager will be as set forth in Section 6.5.2 below as supplemented in the General Requirements. 6.5.2 Requests for review of substitute items of material and equipment will not be accepted by the Project Manager from anyone other than the Contractor. If the Contractor wishes to furnish or use a substitute item of material or equipment, the Contractor shall make written application to the Project Manager for acceptance thereof, certifying that the proposed substitute will perform adequately the functions called for by the general design, be similar and of equal substance to that specified, and be suited to the same use and capable of performing the same function as that specified. The application will state whether or not acceptance of the substitute for use in the Work will require a change in the Drawings or Specifications to adapt the design to the substitute and whether or not incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified shall be identified in the application and available maintenance, repair and replacement service will be indicated. The application will also contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs of redesign and claims of other contractors affected by the resulting change, all of which shall be considered by the Project Manager in evaluating the proposed substitute. The Project Manager may require the Contractor to furnish at the Contractor's expense additional data about the proposed substitute. The Project Manager will be the sole judge of acceptability, and no substitute will be ordered or installed without the Project Manager's prior written acceptance. The City may require the Contractor to furnish at the Contractor's expense a special performance guarantee or other surety with respect to any substitute. 6.6 Disposal of Demolished Materials 6.6.1 Waste material is defined as all material from demolition or other source that is unsuitable to, or in excess of, the needs of the Work or material that is designated for removal and disposal off of City property. All waste materials shall become the property of the Contractor. Materials containing substances classified as hazardous, potentially hazardous, infectious, toxic, or dangerous under applicable Local, State and/or Federal regulations shall be handled and disposed of as directed by applicable regulations, the Detailed Scope of Work and/or the Contract Documents. Page 45 of 103 Packet Pg. 254 4.1.c Proof of proper disposal of substances classified as hazardous, potentially hazardous, infectious, toxic, or dangerous is required by the City. 6.6.2 The Contractor is solely responsible for the lawful managing and disposal of waste material and shall indemnify, defend and hold the City harmless from all liability, damages, claims, lawsuits, penalties and expenses, whether direct, indirect or consequential including but not limited to attorney's and consultant's fees and other expenses of litigation or arbitration arising from or in any way connected with, the demolition, removal or disposal of materials, except as specified for hazardous materials. 6.6.3 The value of waste materials, if any, shall be reflected in the total Job Order price 6.6.4 During the course of the Work, if the Contractor encounters site materials that it believes may be hazardous, potentially hazardous, infectious, toxic, or dangerous, the Contractor will immediately notify the Project Manager and the Contract Administrator. 6.6.5 The City will retain title to all hazardous waste presently on -site encountered during demolition and removal. This does not include hazardous materials generated by the Contractor, such as used motor oils, lubricants, cleaners, etc. The Contractor shall dispose of such hazardous waste according to the Detailed Scope of Work and the Contract Documents, following local, State, and Federal regulations. The City of Edmonds will be shown as the hazardous waste generator and will sign all hazardous waste shipment manifests for non -contractor generated hazardous wastes. Nothing contained within these Contract Documents shall be construed or interpreted as requiring the Contractor to assume the status of the City or generator of hazardous waste substances for non -contractor generated hazardous wastes. 6.6.6 The Contractor shall follow all Environmental Protection Agency (EPA) and all other regulations regarding reporting the disposal of all materials. 6.7 Subcontractors and Sub -Subcontractors 6.7.1 Mandatory Criteria: As required by RCW 39.06.020 and 39.04.350(1), all subcontractors must satisfy all of the following criteria: • At the time of bid submittal, have a certificate of registration in compliance with Chapter 18.27 RCW; • Have a current state unified business identifier number; • If applicable, have Industrial Insurance coverage for the bidder's employees working in Washington as required in Title 51 RCW; an Employment Security Department number as required in Title 50 RCW; and a state excise tax registration number as required in Title 82 RCW; and • Not be disqualified from bidding on any public works contract under RCW 39.06.010 or 39.12.065(3). Page 46 of 103 Packet Pg. 255 4.1.c • If bidding on a public works project subject to the apprenticeship utilization requirements in RCW 39.04.320, not have been found out of compliance by the Washington State Apprenticeship and Training Council for working apprentices out of ratio, without appropriate supervision, or outside their approved work processes as outlined in their standards of apprenticeship under Chapter 49.04 RCW for the one-year period immediately preceding the date of the bid solicitation; and 6.7.2 The Contractor shall not employ any Subcontractor or other person or organization (including those who are to furnish the principal items of materials or equipment), whether initially or as a substitute, against whom the Project Manager may have reasonable objection. Acceptance of any Subcontractor, other person or organization by the City or the Project Manager shall not constitute a waiver of any right of the City to reject defective Work. If the City after due investigation has reasonable objection to any Subcontractor other person or organization proposed by the Contractor after the issuance of the Job Order, the Contractor shall submit an acceptable substitute. The Contractor shall not be required to employ any Subcontractor, other person or organization against whom the Contractor has reasonable objection. 6.7.3 The Contractor shall be fully responsible for all acts and omissions of its Subcontractors and of persons and organizations directly or indirectly employed by them and of persons and organizations for whose acts any of them may be liable to the same extent that the Contractor is responsible for the acts and omissions of persons directly employed by the Contractor. Nothing in the Contract Documents shall create any contractual relationship between the City or any contractor or other person or organization having a direct contract with the Contractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any contractor or other person or organization, except as may otherwise be required by law. The City may furnish to any Subcontractor or other person or organization, to the extent practicable, evidence of amounts paid to the Contractor on account of specific Work done. 6.7.4 All Work performed for the Contractor by a Subcontractor will be pursuant to an appropriate agreement between the Contractor and the Subcontractor which specifically binds the Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of the City. The City reserves the right to obtain copies of any Subcontractor and supplier agreements at any tier from the Contractor. 6.7.5 The Contractor will pay Subcontractors, in accordance with its contractual obligations to such parties, all the amounts the Contractor has received from the City on account of their work. The Contractor will impose similar requirements on Subcontractors to pay those parties with whom they have contracted. 6.8 Patent Fees and Royalties 6.8.1 The Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any 0 U E. a� E. 0 0 3 a Page 47 of 103 Packet Pg. 256 4.1.c invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Detailed Scope of Work for use in the performance of the Work and if to the actual knowledge of the City its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by the City in the Job Order. The Contractor shall indemnify and hold harmless the City and anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses (including attorneys' fees) arising out of any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Detailed Scope of Work, and shall defend all such claims in connection with any alleged infringement of such rights. 6.9 Laws and Regulations 6.9.1 The Contractor shall give all notices and comply with all laws, ordinances, rules, and regulations applicable to the Work. If the Contractor observes that the Specifications or Drawings are at variance therewith, the Contractor shall give the Project Manager prompt written notice thereof, and any necessary changes shall be adjusted by an appropriate modification. If the Contractor performs any Work knowing or having reason to know that it is contrary to such laws, ordinances, rules and regulations, and without such notice to the Project Manager, the Contractor shall bear all costs arising therefrom; however, it shall not be the Contractor's primary responsibility to make certain that the Detailed Scope of Work, Specifications and Drawings are in accordance with such laws, ordinances, rules and regulations. 6.10 Taxes 6.10.1 The Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the law of the State of Washington. All taxes are considered to be included in the Adjustment Factors. 6.11 Use of Premises 6.11.1 The Contractor shall confine equipment, the storage of materials and equipment and the operations of workmen to areas permitted by the City, and shall not unreasonably encumber the premises with equipment or other materials. 6.11.2 During the progress of the Work, the Contractor shall keep the premises free from accumulations of waste materials, rubbish, and other debris resulting from the Work. At the completion of the Work, the Contractor will remove all waste materials, rubbish, and debris from and about the premises as well as all tools, appliances, equipment and machinery, and surplus materials. The Contractor will leave the site clean and ready for occupancy by the City and restore to original condition any portions of the site not designated for alteration by the Detailed Scope of Work. Page 48 of 103 Packet Pg. 257 4.1.c 6.11.3 The Contractor will not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor will the Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.12 Record Documents 6.12.1 The Contractor shall keep one (1) record copy of all Specifications, Drawings, Addenda, modifications, Shop Drawings and samples at the site, in good order and annotated to show all changes made during the construction process. These will be available to the Project Manager and the Contract Administrator for examination and shall be delivered to the Project Manager for the City upon completion of the Work before final payment is made. 6.13 Safety and Protection 6.13.1 The Contractor will be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The Contractor shall take all necessary precautions for the safety of, and provide the necessary protection to prevent damage, injury or loss to: a. All employees on the Work and other persons who may be affected thereby; b. All the Work and all materials or equipment to be incorporated therein, whether in storage on or off the site; and c. Other property at the site or adjacent thereto, including vegetation, walks, pavements, roadways, structures, and utilities not designated for removal, relocation or replacement in the course of construction. It will be the Contractor's responsibility to protect the Work and repair any damages to the Work until after Final Acceptance, as defined in Article 12, has been achieved. 6.13.2 The Contractor will comply with all applicable laws, ordinances, rules, regulations, and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and will erect and maintain all necessary safeguards for such safety and protection. The Contractor will notify owners of adjacent property and utilities when prosecution of the Work may affect them. All damage, injury or loss to any property caused, directly or indirectly, in whole or in part, by the Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by the Contractor (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of the City or the Project Manager or anyone employed by either of them or anyone for whose acts either of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of the Contractor). The Contractor's duties and responsibilities for the safety and protection of the Work will continue until such time as all the Work is completed and the Project Manager has issued a notice to the Contractor in accordance with these General Conditions that the Work is acceptable. Page 49 of 103 Packet Pg. 258 4.1.c 6.13.3 The Contractor shall designate a responsible member of its organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's supervisor unless otherwise designated in writing by the Contractor to the City. 6.14 Emergencies 6.14.1 In emergencies affecting the safety or protection of persons, Work or property at the site or adjacent thereto, the Contractor, without special instruction or authorization from the Project Manager, is obligated to act to prevent threatened damage, injury or loss. The Contractor will give the Project Manager and the Contract Administrator prompt written notice of any significant changes in the Work or deviations from the Detailed Scope of Work caused thereby. 6.15 Shop Drawings and Samples 6.15.1 After checking and verifying all field measurements, the Contractor will submit Shop Drawings to the Project Manager for review and approval, as specified in the Job Order. The data shown on the Shop Drawings will be complete with respect to dimensions, design criteria, materials of construction and like information to enable the Project Manager to review the information as required. 6.15.2 The Contractor will promptly submit to the Project Manager for review and approval all samples required by the Job Order. All samples will have been checked by and stamped with the approval of the Contractor, identified clearly as to material, manufacturer, any pertinent catalog numbers, and the use for which intended. 6.15.3 At the time of sample and drawings submissions, any identified deviations from the Detailed Scope of Work will be called, in writing, to the Project Manager's attention. 6.15.4 The Project Manager will review Shop Drawings and samples within fifteen (15) days, but the Project Manager's review and approval shall be only for conformance with the design concept of the Project and for compliance with the information given in the Detailed Scope of Work and will not extend to means, methods, sequences, techniques, or procedures of construction or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. The Contractor will make any corrections required by the Project Manager and return the required number of corrected copies of Shop Drawings and resubmit new samples for review and approval. The Contractor will direct specific attention in writing to revisions other than the corrections called for by the Project Manager on previous submittals. The Contractor's stamp of approval on any Shop Drawing or sample shall constitute a representation to the City and the Project Manager that the Contractor has either determined and Page 50 of 103 Packet Pg. 259 4.1.c verified all quantities, dimensions, field construction criteria, materials, catalog numbers, and similar data or assumes full responsibility for doing so, and that the Contractor has reviewed or coordinated each Shop Drawing or sample with the requirements of the Detailed Scope of Work and the Contract Documents. 6.15.5 Where a Shop Drawing or sample is required by the Job Order, no related Work shall be commenced until the submittal has been reviewed and approved by the Project Manager. 6.16 Continuing the Work 6.16.1 The Contractor shall carry on the Work and maintain the progress schedule during all disputes or disagreements with the City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as the Contractor and the City may otherwise agree in writing. 6.17 Warranties 6.17.1 All Work will be of good quality, free from fault or defect, and in strict accordance with the requirements of the Detailed Scope of Work. Any Work not conforming to the foregoing warranty, including unapproved or unauthorized substitutions, shall be considered defective. 6.17.2 All Subcontractors', Sub -Subcontractors', manufacturers', and Suppliers' warranties and guarantees, expressed or implied, respecting any part of the Work and all materials used therein shall be obtained and enforced by the Contractor for the benefit of the City without the necessity of separate transfer or assignment thereof. When directed by the Project Manager or required by the Contract Documents, the Contractor shall require that Subcontractors, Sub -Subcontractors, manufacturers, and Suppliers execute separate warranties and guarantees in writing directly to the City. Warranty provisions which purport to limit or alter the City's rights under the Contract Documents are null and void. 6.17.3 The Contractor warrants that title to all Work, materials, and equipment covered by a request for a progress payment or final payment will pass to the City either by incorporation in the Work or upon the receipt of payment by the Contractor, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances. The Contractor further warrants that no Work, materials, or equipment covered by a request for a progress payment or final payment will have been acquired by the Contractor, or by any other person performing Work at the project site or furnishing materials and equipment for the project, which Work, materials, or equipment are subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller of the same or is otherwise imposed by the Contractor or other person. Page 51 of 103 Packet Pg. 260 4.1.c 6.18 Not Used 6.19 Progress Schedule 6.19.1 Within ten (10) days after the effective date of the Notice to Proceed and prior to start of Work unless otherwise specified in the Job Order, the Contractor will prepare and submit a Progress Schedule in a form satisfactory to the Project Manager. Failure to submit a proposed Progress Schedule within the allowed time will not constitute grounds for an extension of the Job Order Completion Time. 6.19.2 The Progress Schedule will consist of a network analysis of the Critical Path Method (CPM) in arrow diagram form showing an activity description, cost, and calendar day duration for all significant design, manufacturing, construction, and installation activities. An activity list will be included with each copy of the Progress Schedule. 6.19.3 Within thirty (30) calendar days after receipt, the City will review, add comments, and return three (3) copies of the Progress Schedule to the Contractor. Review by the City of the proposed Progress Schedule does not constitute an approval of the Contractor's construction means, methods, sequences, or schedule. 6.19.4 The Progress Schedule shall outline the proposed operations, the interrelations of the various operations, and the order of performance in sufficient detail that progress of the Work can be evaluated accurately at any time during the performance of the Work. If abbreviations are used in the make-up of the Progress Schedule, a legend is to be provided to define all abbreviations. 6.19.5 If milestone completions are required by the Job Order, then those milestones are to be clearly defined on the Progress Schedule. 6.19.6 Should it become evident that the Contractor may fail to meet the scheduled dates as shown, the Project Manager may require the Contractor to submit a recovery schedule demonstrating its proposed plan to make up lag in scheduled progress and to ensure completion of the Work within the Job Order Completion Time. The Contractor, upon request, will be required at the Contractor's own expense to submit a revised Progress Schedule and to increase the Contractor's work force and working hours (second and third shifts) as required to bring the actual completion dates of the activities into conformance with the Progress Schedule. Further, the Contractor will submit a revised Progress Schedule at no cost to the City when, in the opinion of the Project Manager, the Contractor's sequence of Work varies significantly from that shown on the Progress Schedule. The City reserves the right to withhold progress payments until such time as an approved modified Progress Schedule in a form satisfactory to the Project Manager has been provided by the Contractor. Page 52 of 103 Packet Pg. 261 4.1.c 6.19.7 Failure of the Contractor to substantially comply with the requirements of this section may be considered grounds for a determination by the City that the Contractor is failing to prosecute the Work with such diligence as will ensure its completion within the time specified, and to take whatever action the City deems necessary and appropriate under the terms of the Contract Documents. 6.20 On -Site Documents 6.20.1 The Contractor is to maintain at the Project site, in good order for ready reference by the Project Manager, one (1) complete record copy of the Detailed Scope of Work, including changes in the Work, Field Orders, and all working drawings, Progress Schedule, and other approved submittals. 6.20.2 The Job Order record drawings are to be marked to truly record all changes made during construction, i.e., the "as -built" conditions. The Project's record drawings are to be updated on a weekly basis and before elements of the Work are covered or hidden from view. After the completion of the Work or portions of the Work and before requesting final inspection, the record copy of the Drawings will be given to the Project Manager. 6.21 Working Drawings, Product Data, Samples, and Other Submittals 6.21.1 The Contractor will review and submit all working drawings, product data, samples and other items required to be submitted to the City accompanied by a "shop drawing multi -transmittal" form. Such submittals will be given to the City in a complete and final form at least thirty (30) days prior to any Contractor need for review response or such other longer time that may be needed to allow time for detailed review by the City or others. The Contractor should allow sufficient time for the possibility of rejection of the submittal, needed revisions, and resubmittal review time. 6.21.2 By submitting working drawings, product data, and samples, the Contractor represents that it has determined and verified all materials, field measurements, and related field construction criteria are in accordance with the Detailed Scope of Work, and that the Contractor has checked and coordinated the information contained within the submittal with the requirements of the Detailed Scope of Work. The costs incurred by the City to review resubmitted working drawings, product data, and samples may be offset from any monies due the Contractor when the Contractor has failed to comply with this Subsection. 6.21.3 Review and approval by the City of the Contractor's working drawings, product data, or samples does not relieve the Contractor of responsibility for the accuracy of dimensions and details. Likewise, any review and comments do not relieve the contractor from complying with every requirement of the Job Order drawings and specifications unless the Contractor has called written attention to any deviations contained in the submittal and these deviations have been reviewed and accepted. By omission of any feature, capability, or part of any item submitted, the Page 53 of 103 Packet Pg. 262 4.1.c Contractor implies that these missing features, capabilities, or parts will be furnished exactly as required by the Job Order documents. Review and approval shall not constitute acceptance by the City of the correctness or adequacy of such submittals, nor shall it constitute a representation or warranty by the City that the drawings will satisfy the requirements of the Job Order. The review of a specific item shall not indicate approval of an assembly in which the item functions. The City's review or approval of a submittal shall not relieve the Contractor from responsibility for errors or omissions in the submittals. 6.21.4 Any Work delayed by reason of a properly rejected submittal is deemed to be entirely the Contractor's risk and will not be the basis for a claim by the Contractor for additional compensation or an extension of Job Order Completion Time. Drawings marked "subject to change" or the like will not be reviewed. The City is not required to review submittals that depend for their review on other submittals not yet submitted. 6.21.5 When resubmitting a submittal, the Contractor is to direct specific attention, in writing or on the resubmittal itself, to all revisions it has made. 6.21.6 No portion of the Work requiring submittal of a working drawing, product data, or sample is to be commenced until the submittal has been approved by the City as provided in these General Conditions. All portions of the Work involving submittals shall be performed in accordance with the approved submittals. 6.21.7 As -Built Drawings: If the Contractor is provided, or prepares, drawings as part of the Detailed Scope of Work, then as the Detailed Scope of Work progresses the Contractor shall keep a complete and accurate record of changes to, and deviations from, such drawings. The As -Built Drawings will be created in the same medium (paper, electronic) in which they were originally prepared. 6.22 Cutting, Fitting and Patching of Work 6.22.1 The Contractor will be responsible for all cutting, fitting, patching, or such other altering as may be required to complete the Work, or to make its several parts fit together properly. 6.22.2 The Contractor will not damage or endanger any portion of the Work, other work of the City, or that of any separate contractor(s) by cutting, fitting, patching or other altering of any work, or by excavation. The Contractor will not alter any of the work of the City or any separate contractor without written authorization from the City. 6.23 Inspection of the Work 6.23.1 The Project Manager or authorized representative shall have the right but not the obligation to inspect the Work, and to reject and refuse all labor and materials or methods of application, or any part thereof, which does not comply in kind, quality or material with the requirements of the Detailed Scope of Work. Any labor or material rejected, as not conforming to the Contract Documents shall be promptly removed. Labor and materials which do so conform will be furnished and a Page 54 of 103 Packet Pg. 263 4.1.c delivered in place thereof; and if the Contractor refuses or neglects to remove such rejected material or to rebuild any such rejected Work, or otherwise correct the defects as the Project Manager directs, the City may obtain, use and employ materials, labor, tools, and implements to do the same and the expense thereof will be deducted from moneys which may otherwise be due or become due to the Contractor. 6.24 Uncovering of Work 6.24.1 If any portion of the Work should be covered prior to inspection called for by law or as required by the Contract Documents, the Contractor will, upon request of the Project Manager, uncover or remove the Work for inspection by the Project Manager or other governmental representatives, and replace the Work to the standard required by the Detailed Scope of Work, all at the Contractor's expense. 6.24.2 If any other portion of the Work has been covered or completed, the Contractor will, upon the request of the Project Manager, remove or uncover such Work for the Project Manager's observation. The Contractor will subsequently restore that portion of the Work to the standard required by the Detailed Scope of Work at no additional costs to the City. 6.25 Correction of Work 6.25.1 The Contractor will, at no additional expense to the City, promptly correct all Work which is defective or otherwise fails to conform to the requirements of the Detailed Scope of Work. Such Work is to be corrected even though it was previously inspected by the City, payment for it was included in a progress payment, whether or not it was completed, and whether or not it was observed before or after the date of Substantial Completion. 6.25.2 If, within one (1) year after Substantial Completion of the Work or within such longer period of time as may be prescribed by law or by the terms of any applicable additional warranty required by the Job Order, any of the Work is found to be defective or otherwise not in conformance with the Detailed Scope of Work, the Contractor will, at its cost, promptly correct such defective or non- conforming Work after receipt of written notice from the City. The obligation of this subsection shall survive termination of the Contract. 6.25.3 If the Contractor refuses or neglects to correct the defects as directed by the Project Manager, the City may obtain, use, and employ materials, labor, tools and implements to do the same and the expense thereof shall be deducted from moneys which may otherwise be due or become due to the Contractor or the City. If the Contractor fails to promptly correct defective or non -conforming Work, the City may correct it as provided in section 6.25, or may terminate this Contract. 6.25.4 Work corrected by the Contractor pursuant to section 6.25 will also be subject to the provisions of this section to the same extent as Work originally performed and for an additional one-year period commencing upon City acceptance of corrected work. Page 55 of 103 Packet Pg. 264 4.1.c 6.25.5 Nothing contained in this section is to be construed to establish a period of limitation with respect to any other obligation imposed on the Contractor by the Contract Documents or law, including the obligations imposed by section 6.17. The establishment of the time period of one year after the date of Final Completion or such longer period of time as may be prescribed by law or by the terms of any warranty required by the Job Order relates only to the specific obligation of the Contractor to correct defective or non -conforming Work, and bears no relationship to the time within which the Contractor's obligation to comply with the Job Order 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 obligations imposed on it by the Contract Documents or as otherwise may exist in law. 6.25.6 The City may, at its sole option, elect to retain defective or nonconforming Work In such case, the Contractor will reduce the Job Order Price in a reasonable amount to account for such defect or non-conformance. 6.26 Responsibility for Work 6.26.1 All Work performed under the Contract and all materials to be incorporated in the Work, whether in storage or on the Project site and whether under the care, custody and control of the Contractor, Subcontractor, or Sub -Subcontractor, shall be at the sole risk of loss and responsibility of the Contractor until Final Completion of the entire Project, except as may be limited by the Project Manager in writing for the period following Substantial Completion of the Work or designated portion thereof as provided in section 12.4. Damage from any cause to either permanent or temporary Work, utilities, materials, equipment, existing structures, the Project site, and other property owned by the City or others, shall be repaired by the Contractor to the satisfaction of the Project Manager at no additional cost to the City. At no time during the execution of this Contract shall the Contractor direct City staff or City agents to assist in the execution of the Work. 6.27 Hazardous Materials 6.27.1 The Contractor will comply with WAC 296-901 Global Harmonized System for Hazard Communication; and provide proper communications with personnel to prevent injury or illness. 6.27.2 The Contractor will take the following precautions to lessen the possibility of exposure to any hazardous material(s): • Notify all Subcontractors and/or suppliers of any Hazardous Materials that may be on site; • Label any Hazardous Materials brought on site as to contents, hazard warning, name and address of manufacturer; • Provide the following written information to the Project Manager prior to commencement of Work: 1. A list of Hazardous Materials to be used during the construction phase of the Page 56 of 103 Packet Pg. 265 4.1.c Work along with appropriate Material Safety Data Sheets. 2. A list of any Hazardous Materials that have been incorporated into the Project and will remain on site, along with the Material Safety Data Sheets. 6.27.3 The Contractor is not to cause or permit any Hazardous Material(s), as defined herein, to be brought upon, kept, or used in or about the job site except to the extent such Hazardous Materials are necessary for the prosecution of the Work or are required pursuant to the Contract Documents. Removal of such Hazardous Materials will be undertaken within twenty-four (24) hours following the City's demand for such removal. Removal will be undertaken by the Contractor at its sole cost and expense and will be performed in accordance with all applicable laws. Any damage to the Work, the job site or any adjacent property resulting from the improper use, or any discharge or release of Hazardous Materials, will be remedied by the Contractor at its sole cost and expense, and in compliance with all applicable laws. The Contractor will immediately notify the City of any release or discharge of any Hazardous Materials on the job site. The Contractor will be responsible for making any and all disclosures required under applicable "Community Right -to -Know" laws. The Contractor will not clean or service any tools, equipment, vehicles, materials, or other items in such a manner as to cause a violation of any laws or regulations relating to Hazardous Materials. All residue and waste materials resulting from any such cleaning or servicing will be collected and moved from the job site in accordance with all applicable laws and regulations. The Contractor will immediately notify the City of any citations, orders, or warnings issued to or received by the Contractor, or of which the Contractor otherwise becomes aware, which relate to any Hazardous Materials on the job site. Without limiting any other indemnification provisions pursuant to law or specified in this Contract, the Contractor will indemnify, defend at the Contractor's sole cost with legal counsel approved by the City and hold the City harmless from and against any and all such claims, demands, losses, damages, disbursements, liabilities, obligations, fines, penalties, costs, and expenses in removing or remediating the effect of any Hazardous Materials on, under, from or about the job site, arising out of or relating to, directly or indirectly, the Contractor's failure to comply with any of the requirements of Section 6.27. 6.28 Clean-up 6.28.1 At all times, and as may specifically be requested by the Project Manager, the Contractor will clean-up and remove all refuse resulting from the Work in order that the Project site remains free from an accumulation of construction debris. Upon failure to do so within twenty-four (24) hours after request by the Project Manager, such clean-up Work may be done by the City and the cost be charged to the Contractor and deducted from the Job Order Price. 6.28.2 Upon completion of the Work and before final inspection, the Contractor will clean the entire Work premises occupied or used in connection with the Work of all rubbish, surplus and discarded materials, false work, temporary structures, equipment, and debris. The entire Work premises shall be left in a clean, neat, and Page 57 of 103 Packet Pg. 266 4.1.c presentable condition. The Contractor will not remove warning, regulatory, or guide signs prior to Final Completion except as requested by the Project Manager. 6.29 Protection of Work During Suspension 6.29.1 In preparation for and during any suspension of Work as provided in section 13.1, the Contractor will take every precaution to prevent damage to, or deterioration of, the Work. Except as provided elsewhere in the Job Order, the Contractor will be responsible for all damage or deterioration to the Work during the period of suspension and shall, at its sole expense, correct or restore the Work to a condition acceptable to the Project Manager prior to resuming Work. A suspension of Work will not relieve the Contractor of any of its responsibilities under the Job Order. 6.30 Notice and Detailed Breakdown of Claim 6.30.1 Notice. If unforeseen conditions or changes in the Work arise for which the Contractor believes an equitable adjustment in time or money or any other adjustment in Job Order Completion Time or Job Order Price is or will be due, the Contractor will give the City immediate oral notice followed by written notice within seven (7) calendar days of such event. In all events, notice must be given and the Project Manager's direction received prior to performing the Work which the Contractor believes entitles it to such adjustments. Notice must identify in detail the basis for the claim. The date such written notice is received by the City shall define the start of time for any purpose regarding the claim. 6.30.2 Detailed Breakdown. Within thirty (30) calendar days of the City's receipt of the written notice above, the Contractor is to provide the City with a written breakdown of all of the elements and sub elements of the claim detailing the increase in the Job Order Completion Time and/or Job Order Price being sought. 6.30.3 If the Contractor fails to satisfy the requirements of this section, the Contractor will be deemed to have waived all rights to assert the claim against the City. 6.30.4 Unless otherwise directed by the City, the Contractor shall continue performance under this Contract while matters in dispute are being resolved. 6.30.5 For Federally Funded Job Orders, the requirements in this Section 6.30 are in addition to any claim requirements in the Federal Contract Clauses. 6.31 Prerequisite to Suit No legal action against the City may be filed on account of a claim or other liability arising out of or related to Work unless: a. The requirements of section 6.30 have been complied with; and b. The lawsuit is filed and served on the City within one hundred eighty (180) days of the date of Substantial Completion. The Contractor's failure to strictly comply with all requirements of this section shall be a complete bar to any claims, suits, or causes of action against the City. Page 58 of 103 Packet Pg. 267 4.1.c For Federally Funded Job Orders, the requirements in this Section 6.31 are in addition to any claim requirements in the Federal Contract Clauses. 6.32 Indemnification 6.32.1 The Contractor shall defend, indemnify and hold harmless the City and its agents from all liability, claims, damages, losses and expenses, whether direct, indirect or consequential (including, but not limited to, attorneys' and consultants' fees and other expenses of litigation or arbitration) arising out of the performance of the Work, which is caused, or alleged to be caused, in whole or in part, by any negligent act or omission of the Contractor (which for the purposes of this Article 6.32 shall include the Contractor and all of its Subcontractors, Sub - Subcontractors, Suppliers, agents, any other person directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable); provided, however, that where such liability, claim, damage, loss or expense arises from the concurrent negligence of (1) the City or its agents, and (2) the Contractor, it is expressly agreed that the Contractor's obligations of indemnity under this section shall be effective only to the extent of the Contractor's negligence. Such obligations shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any person or entity described in this section. This section shall not be construed so as to require the Contractor to defend, indemnify, or hold harmless the City from such claims, damages, losses or expenses caused by or resulting from the sole negligence of the City or its agents. 6.32.2 In any and all claims against the City or its agents, the indemnification obligation of Article 6.32.1 above shall not be limited in any way to the extent of insurance coverage described in Articles 5.3 and 5.4 of the General Conditions, or by articles, which apply to insurance coverage, of the Supplementary Conditions, or by any limitation on the amount or type of damages, compensation benefits payable by or for the Contractor under applicable workers' compensation, benefit, or disability laws (including, but not limited to the Industrial Insurance laws, Title 51 of the Revised Code of Washington). The Contractor expressly waives any immunity the Contractor might have had under such laws with respect to the indemnities set forth in these General Conditions, and, by agreeing to enter this Contract, acknowledges that the foregoing waiver has been mutually negotiated by the parties. 6.32.3 For federally funded job orders, the following clause applies: No Federal Government Obligations to Third Parties (1) The City of Edmonds and the Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the Recipient, Contractor or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying Contract. Page 59 of 103 Packet Pg. 268 4.1.c (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by the FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. END ARTICLE 6 Page 60 of 103 Packet Pg. 269 4.1.c ARTICLE 7 ADDITIONAL WORK AND WORK BY OTHERS 7.1 Additional Work 7.1.1 The City may perform additional work related to the Project by itself or let other direct contracts which may contain General Conditions similar to these. The Contractor shall afford the other contractors who are parties to such direct contracts (or the City, if the City is performing the additional work with City employees) reasonable opportunity for the introduction and storage of materials and equipment and the execution of work, and shall properly connect and coordinate its Work with theirs. 7.1.2 If any part of the Contractor's Work depends for proper execution or results upon the work of any such other contractor or the City, the Contractor shall inspect and promptly report to the Project Manager in writing any patent or apparent defects or deficiencies in such other work that render it unsuitable for such proper execution and results. The Contractor's failure so to report will constitute an acceptance of the other work as fit and proper for integration with the Contractor's Work except for latent or non -apparent defects and deficiencies in the other work. 7.1.3 The Contractor will do all Work required to make its several parts come together properly and integrate with such other work. The Contractor will not endanger any work of others by otherwise altering their work and will only alter their work with written consent of the Project Manager and the others whose work will be affected. 7.1.4 If the performance of additional work by other contractors or the City was not noted in the Detailed Scope of Work, written notice will be given to the Contractor prior to starting any such additional work. The City will coordinate and schedule any such additional Work not noted in the Detailed Scope of Work to avoid interference or conflict with ongoing or scheduled work by the Contractor. END ARTICLE 7 Page 61 of 103 Packet Pg. 270 4.1.c ARTICLE 8 CITY'S RESPONSIBILITIES 8.1 Authority of the Project Manager 8.1.1 A Project Manager's authority is specific to the Job Order to which he or she is assigned. 8.1.2 The Contract Administrator will exercise all authority of the Project Manager with respect to any and all Job Orders at any time. 8.1.3 The Contract Administrator will be the City's representative and shall administer all Contract Documents. With respect to a Job Order, Final Acceptance as provided for in Article 12 will be accomplished by the Project Manager. The Project Manager and the Contract Administrator have the authority to enforce all obligations imposed on the Contractor by the Contract Documents. 8.1.4 The Work will be performed in accordance with the Detailed Scope of Work and the Contract Documents. The Project Manager has the authority but not the obligation to reject Work that is defective or does not otherwise conform to the Detailed Scope of Work. 8.1.5 The Project Manager is not responsible for and will not have control or charge of the means, methods, techniques, sequences, or procedures of Work, or for safety precautions or programs incidental thereto, these being the sole responsibility of the Contractor. The Project Manager will not be responsible for or have any control or charge of the acts or omissions of the Contractor, Subcontractor, Sub - Subcontractor, Suppliers, or any of their agents or employees, or any other persons performing a portion of the Work. 8.1.6 The City will issue all communications to the Contractor through the Project Manager or the Contract Administrator, as determined. In case of termination of the employment of the Project Manager or the Contract Administrator, the City will appoint a replacement(s). 8.2 Administration of the Contract 8.2.1 Nothing in this Article or elsewhere in the Contract Documents shall be construed as requiring the Project Manager, the Contract Administrator, the Inspector, a consultant, or other representative of the City to direct or advise the Contractor as to the method or manner of performing the Work. No approval or advice given by the City as to the method or manner of performing the Work or procuring materials to be furnished will constitute a representation or warranty by the City that the result of such method or manner will conform to the Detailed Scope of Work or achieve the desired results. Such approval or advice will neither relieve the Contractor of any of its obligations under the Contract nor create any liability to the City on account of approval or advice. The Project Manager or the Inspectors may call to the attention of the Contractor defective Work or Work that does not conform otherwise to the Detailed Scope of Work. However, the failure of the Page 62 of 103 Packet Pg. 271 4.1.c Project Manager or the Inspectors to so inform the Contractor will not constitute approval or acceptance of such defective or non -conforming Work. 8.2.2 The presence of the Project Manager or the Inspector during the progress of any Work does not relieve the Contractor from responsibility for defects in the Work, nor does it bind the City in determining Final Completion of the Work. 8.2.3 Work done or material furnished which at any time is found not to conform to the requirements of the Contract Documents shall be at the Contractor's risk and expense and shall furnish no basis for an increase in the Contract Sum or Contract Time, even though the Project Manager or the Inspector fails to reject such Work or material. 8.3 City's Right to Carry Out Other Work The City reserves the right at all times to perform or cause to be performed other and additional work on or near the site of the Project. Should such other or additional work or City operations be either underway or subsequently undertaken at or near the Project, the the Contractor will coordinate its activities with those of all other work forces and conduct its activities to avoid or minimize any conflict between the operations of the Contractor and those persons performing the other or additional work or operations. 8.4 Officers and Employees of the City Have No Personal Liability Neither the elected officials, Project Manager, Contract Administrator, Inspector, nor any other officer, employee or agent of the City shall be personally liable to the Contractor for any of their acts or omissions arising out of the Project. 8.5 Gratuities The Contractor will not extend any loan, gratuity, or gift of money or services in any form whatsoever to any employee or officer of the City or City consultant, nor will the Contractor rent or purchase any equipment, materials, or services from any employee or officer of the City or any City consultant. 8.6 Service of Notices on the Contractor Any written notice required under the Contract Documents to be given to the Contractor may, at the option of the City, be served on the Contractor by personal service, electronic or facsimile transmission, mail, or private courier delivery to the last address provided in writing to the City Project Manager and the Contract Administrator. For the purpose of measuring time in determining the parties' rights and obligations with respect to notice given pursuant to the Job Order and Contract Documents (other than that given by personal service), notice is conclusively presumed to be received by the Contractor on the next business day following the City's electronic or facsimile transmittal placing the notice in the U.S. mail or delivering it to the private courier. END ARTICLE 8 Page 63 of 103 Packet Pg. 272 4.1.c ARTICLE 9 PROJECT MANAGER'S STATUS DURING WORK 9.1 City's Representative The Project Manager will be the City's representative for a Job Order. The Project Manager and the City's Contract Administrator will be identified to the Contractor prior to commencement of the Work. 9.2 Clarifications and Interpretations The Project Manager will issue with reasonable promptness such written clarifications or interpretations of the Detailed Scope of Work in the form of Drawings or otherwise as the Project Manager may determine necessary, which will be consistent with or reasonably inferable from the overall intent of the Detailed Scope of Work. If the Contractor believes that a written clarification or interpretation justifies an increase in the Job Order Price or Job Order Completion Time, the Contractor may make a claim as provided in Article 10. 9.3 Rejecting Defective Work The Project Manager will have authority to disapprove or reject Work which is defective, and will also have authority to require special inspection or testing of the Work, whether or not the Work is fabricated, installed or completed. 9.4 Not Used 9.5 Decisions on Disagreements 9.5.1 The Contract Administrator will be the initial interpreter of the Contract Documents while the Project Manager will be the initial interpreter of the requirements of the Job Order and judge of the acceptability of the Work. Additional disputes relating to the acceptability of the Work or the interpretation of the requirements of the Detailed Scope of Work or Contract Documents pertaining to the execution and progress of the Work shall be referred to the Contract Administrator in writing with a request for a formal decision in accordance with this section, which the Contract Administrator will render in writing within a reasonable time. Written notice of each such dispute shall be delivered by the claimant to the Contract Administrator within fifteen (15) calendar days of the occurrence after the event giving rise thereto, and written supporting data will be submitted to the Contract Administrator within forty-five (45) calendar days of such occurrence unless the Contract Administrator allows an additional period of time to ascertain more accurate data. 9.5.2 The rendering of a decision by the Contract Administrator pursuant to section 9.5.1 with respect to any such dispute (except any which have been waived by the making or acceptance of final payment as provided in section 12.8) will be a condition precedent to any exercise by the City or the Contractor of such rights or remedies as either may otherwise have under the Contract Documents or at law in respect of any such dispute. Page 64 of 103 Packet Pg. 273 4.1.c 9.6 Limitations on Project Manager's Responsibilities 9.6.1 Neither the Project Manager's authority to act under this Article 9 or elsewhere in the Contract Documents nor any decision made by the Project Manager in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of the Project Manager to the Contractor, any Subcontractor, any manufacturer, fabricator, supplier or distributor, or any of their agents or employees or any other person performing any of the Work. 9.6.2 Whenever in the Contract Documents the terms "as ordered", "as directed", "as required", "as allowed" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper" or "satisfactory" or adjectives of like effect or import are used, to describe a requirement, direction, review or judgment of the Project Manager as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate the Work for compliance with the Contract Documents unless there is a specific statement indicating otherwise. The use of any such term or adjective never indicates that the Project Manager shall have authority to supervise or direct performance of the Work or authority to undertake responsibility contrary to the provisions of Sections 9.8.2 or 9.8.3. 9.6.3 The Project Manager will not be responsible for the Contractor's means, methods, techniques, sequences or procedures of Work, or the safety precautions and programs incident thereto, and the Project Manager will not be responsible for the Contractor's failure to perform the Work in accordance with the Detailed Scope of Work. 9.6.4 The Project Manager will not be responsible for the acts or omissions of the Contractor or of any Subcontractor, or of the agents or employees of the Contractor or any Subcontractor, or of any other persons at the site or otherwise performing any of the Work. 9.7 Not Used 9.8 Requests for Instruction 9.8.1 Due to the highly variable nature of the materials and facilities encountered within the site, the Contractor will require instructions from the Project Manager as new areas are uncovered or exposed by the Work in progress. In the event that the Contractor requests such instructions in order to comply with the Contract requirements, the Project Manager will provide the instructions in writing, within forty- eight (48) hours. During the 48-hour period, no additional payments will be made to the Contractor for equipment, labor, or any other item related to the request for instructions. 9.8.2 In addition, the requirements of the Detailed Scope of Work may be supplemented and minor variations and deviations in the work may be authorized, in one or more of the following ways: Page 65 of 103 Packet Pg. 274 4.1.c a. The Project Manager may authorize minor variations in the work from the requirements of the Detailed Scope of Work which do not involve an adjustment in the Job Order Price or Job Order Completion Time and are consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order and will be binding on the City, and also on the Contractor who shall perform the Work involved promptly. If the Contractor believes that a Field Order justifies an increase in the Job Order Price or an extension of the Job Order Completion Time and the parties are unable to agree as to the amount or extent thereof, the Contractor may make a claim as provided in Article 10. b. The Project Manager's approval of a Shop Drawing or sample. c. The Project Manager's written interpretation or clarification. END ARTICLE 9 Page 66 of 103 Packet Pg. 275 4.1.c ARTICLE 10 CHANGES IN THE WORK 10.1 Changes to Contract Documents Non -Job Order Specific Contract Documents. Modification of the following Contract Documents after the effective date of the Contract requires a Contract amendment signed by an authorized representative of the Contractor and an authorized representative of the City: Contract, General Conditions, Supplementary Conditions, RFP and addenda thereto, Contractor's Proposal, and the Construction Task Catalog°. Job -Order Specific Contract Documents. Modification of the following Contract Documents and requirements after the effective date of the Contract are to be signed by the Contract Administrator and the Project Manager: all Job Orders and Job -Order specific documents, including but not limited to the Detailed Scope of Work, Job Order Completion Time, Request for Proposal, Price Proposal, Job Order Proposal, Notice to Proceed, submittals, record documents, and all required close- out documentation and warranties. Any modification that increases/decreases the Job Order Price must be signed by the Contract Administrator. 10.2 Change Order and Supplemental Job Order Changes to the Contract may be accomplished after execution of the Contract and without invalidating the Contract. The City, without invalidating the Job Order, may order changes in the Work by altering, adding to, or deducting from the Work, by issuing a Supplemental Job Order. All Supplemental Job Orders shall be developed and priced in accordance with the Procedures for Developing All Job Orders. Credits for Pre -priced and Non-Prepriced Tasks shall be calculated at the pre-set Unit Prices and multiplied by the appropriate Adjustment Factors. The result is that a credit for Tasks that have been deleted from the Detailed Scope of Work will be given at 100% of the value at which they were included in the original Job Order Price Proposal. All such Work shall be executed under the applicable conditions of the Contract Documents. The Project Manager may authorize minor changes in the Work that do not change the Job Order price, which are consistent with the overall intent of the Detailed Scope of Work. These may be accomplished by a Field Order and shall be binding on the City, and also on the Contractor who shall perform the change promptly. Additional Work performed without authorization of a Supplemental Job Order will not entitle the Contractor to an increase in the Job Order Price or an extension of the Job Order Completion Time. Page 67 of 103 Packet Pg. 276 4.1.c The Contractor may request a Supplemental Job Order to reflect modifications to the Work resulting from unforeseen site conditions. If the Project Manager determines that such unforeseen site conditions require a modification of the Work, the Project Manager will prepare a Supplemental Job Order for execution by the Contract Administrator incorporating such modifications as necessary to proceed with and complete the Work. The Contractor shall be responsible for reallocation of its work force when work cannot be continued in an area due to unforeseen conditions. In no event will the City reimburse the Contractor for charges caused by delays unless prior written authorization is provided by the City. 10.3 Job Order Price The Job Order Price constitutes the total compensation subject to authorized adjustments payable to the Contractor for performing the Detailed Scope of work. All duties, responsibilities and obligations assigned to or undertaken by the Contractor shall be at its expense without change in the Job Order Price. Contractor Mobilization consists of preconstruction expenses and costs of preparatory work and operations performed by the Contractor that are not defined as a part of a payment item and are considered to be part of the Job Order Price. 10.4 Job Order Completion Time Any extension of Job Order Completion Time must have the written approval of the City and must conform to the procedures set forth herein. In event of delay in completion of the Work caused by acts of God, or public enemy, or another contractor in the performance of a contract with the City, or caused by fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or weather, the sole and exclusive remedy of the Contractor will be an equitable extension of time allowed for completion. Reasonable Delays. The Contractor should anticipate that some reasonable delays, including those caused by normal weather patterns, may occur. The Contractor shall not be entitled to any compensation, damages, or extension of the Contract Time for such reasonable delays. Excusable Delays. The Job Order Completion Time may be extended without compensation by the City for a period equivalent to the time that the Contractor was delayed in the Work by one or more of the following causes, beyond the control of the City and the Contractor, occurring during the performance of the Work: a. Fire or other casualty for which the Contractor is not at fault or otherwise responsible; b. Strike, riot, war, or civil disorder; c. Suspension of Work due to unusual and severe weather; d. Suspension of Work due to other unsuitable conditions in accordance with Article 13. Page 68 of 103 Packet Pg. 277 4.1.c Unreasonable Delays. Extensions of Job Order Completion Time, if any, will be determined by the Project Manager. Time extensions will be allowed only to the extent that completion of the Work is unreasonably delayed through no fault of the Contractor, which must in all cases unless otherwise determined by the Project Manager be substantiated by impact to the critical path on the Progress Schedule. Any extension of the Job Order Completion Time by the City will be set forth in writing, which shall specify the calendar days by which the Contract Time is to be increased. No extension of time shall be allowed for any claimed delay which is caused by or results from concurrent delay or the fault, negligence, or collusion of the Contractor or its Subcontractors, suppliers, or any others, or any of their acts or failure to act or to timely perform the Work according to the Contract. Failure to make timely submittals to the City, procure materials or workmen, or perform the Work in accordance with the requirements of the Detailed Scope of Work, or to adequately plan for such functions will not be an adequate reason for an extension of the Job Order Completion Time. In no event shall the Contractor be entitled to loss or damage, including a change in Job Order Price for any delay in the Contractor's prosecution of the Work, even if such delay is caused by the City, except to the extent such acts or omissions of the City result in a delay to the Project's critical path, in which case the Contractor may receive an adjustment to the Job Order Price and/or an extension of the Job Order Completion Time. Any request for such cost shall be established and documented by the Contractor in detail to the satisfaction of the Project Manager. If the Contractor fails to fully comply with section 6.30, its claim for an extension of the Job Order Completion Time or adjustment to the Job Order Price on account of such claimed delay is waived. The Job Order Completion Time may only be changed by the City. Any request for an extension in the Job Order Completion Time shall be based on written notice delivered to the Project Manager and the Contract Administrator within fifteen (15) days of the occurrence of the event giving rise to the request. All requests for adjustment in the Job Order Completion Time shall be determined by the Contract Administrator if the Project Manager and the Contractor cannot otherwise agree. Any change in the Job Order Completion Time resulting from any such request shall be incorporated in a Field Order. The Job Order Completion Time will be extended in an amount equal to time lost due to delays beyond the control of the Contractor if a request is made therefore as provided in this Article 10. All time limits stated in the Job Orders and the Contract Documents are of the essence of the Contract. The provisions of this Article 10 shall not exclude recovery for damages including compensation for additional professional services for delay by either party. END ARTICLE 10 Page 69 of 103 Packet Pg. 278 4.1.c ARTICLE 11 WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 11.1 Warranty and Guarantee The Contractor warrants and guarantees to the City that all Work will be in accordance with the Detailed Scope of Work and will not be defective. Prompt notice of all defects shall be given to the Contractor. All defective Work, whether or not in place, may be rejected, corrected or accepted as provided in this Article 11. 11.2 Access to Work The Project Manager and the Project Manager's representatives, other representatives of the City, testing agencies and governmental agencies with jurisdictional interests will have access to the Work at reasonable times for their observation, inspection and testing. The Contractor shall provide proper and safe conditions for such access. 11.3 Tests and Inspections 11.3.1 The Contractor will give the Project Manager a minimum of seven (7) days' notice of readiness of the Work for all required inspections, tests or approvals. 11.3.2 If any law, ordinance, rule, regulation, code, or order of any public body having jurisdiction requires any Work or part thereof to specifically be inspected, tested or approved, the Contractor will assume full responsibility, pay all costs in connection, and furnish the Project Manager with the required certificates of inspection, testing or approval. The Contractor will also be responsible for and pay all costs in connection with any inspection or testing required in connection with the City's or the Project Manager's acceptance of a manufacturer, fabricator, supplier or distributor of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to the Contractor's purchase thereof for incorporation in the Work. The cost of all other inspections, tests and approvals required by the Contract Documents shall be paid by the City unless otherwise specified. 11.3.3 All inspections, tests or approvals other than those required by law, ordinance, rule, regulation, code or order of any public body having jurisdiction will be performed by organizations acceptable to the City and the Contractor or by the Project Manager if so specified. 11.3.4 If any Work that is to be inspected, tested or approved is covered without written concurrence of the Project Manager, it must, if requested by the Project Manager, be uncovered for observation. Such uncovering shall be at the Contractor's expense unless the Page 70 of 103 Packet Pg. 279 4.1.c Contractor has given the Project Manager timely notice of the Contractor's intention to cover such Work and the Project Manager has not acted with reasonable promptness in response to such notice. 11.3.5 Neither observations by the Project Manager nor inspections, tests or approvals by others will relieve the Contractor from its obligations to perform the Work in accordance with the Detailed Scope of Work. 11.4 City May Stop the Work If the Work is defective, or the Contractor fails to supply sufficient skilled workmen or suitable materials or equipment, the City may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the City to stop the Work will not give rise to any duty on the part of the City to exercise this right for the benefit of the Contractor or any other party. 11.5 Correction or Removal of Defective Work If required by the Project Manager, the Contractor shall promptly, without cost to the City and as specified by the Project Manager, either correct any defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by the Project Manager, remove it from the site and replace it with non -defective Work. 11.6 Acceptance of Defective Work If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. In such case, if acceptance occurs prior to the Project Manager's recommendation of final payment, a Supplemental Job Order shall be issued incorporating the necessary revisions in the Detailed Scope of Work, including appropriate reduction in the Price; or, if the acceptance occurs after such recommendation, an appropriate amount shall be paid by the Contractor to the City. 11.7 City May Correct Defective Work If the Contractor fails within a reasonable time after written notice of the Project Manager to proceed to correct and to correct defective Work or to remove and replace rejected Work as required by the Project Manager in accordance with section 11.5, or if the Contractor fails to perform the Work in accordance with the Contract Documents (including any requirements of the progress schedule), the City may, after seven (7) days' written notice to the Contractor, correct and remedy any such deficiency. In exercising its rights under this section the City shall proceed expeditiously. To the extent necessary to complete corrective and remedial action, the City may exclude the Contractor from all or part of the site, take possession of all or part of the Work, and suspend the Contractor's services related thereto, take possession of the Contractor's tools, appliances, equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere. The Page 71 of 103 Packet Pg. 280 4.1.c Contractor shall allow the City and the City's representatives, agents and employees such access to the site as may be necessary to enable the City to exercise its rights under this Section. All direct and indirect costs of the City in exercising such rights shall be charged against the Contractor in an amount verified by the Project Manager, and a Supplemental Job Order shall be issued incorporating the necessary revisions in the Detailed Scope of Work and a reduction in the Job Order Price. Such direct and indirect costs shall include, in particular but without limitation, compensation for additional professional services required and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or replacement of the Contractor's defective Work. The Contractor shall not be allowed an extension of the Job Order Completion Time because of any delay in performance of the Work attributable to the exercise by the City of the City's rights hereunder. END ARTICLE 11 Page 72 of 103 Packet Pg. 281 4.1.c ARTICLE 12 PAYMENTS TO CONTRACTOR AND COMPLETION 12.1 Application for Progress Payment Unless otherwise specified in the General Requirements, the Contractor will submit Applications for Payment & Invoices to the Contract Administrator for review and approval following completion of each Job Order. Under no circumstances will the City pay Job Order Invoices more often than once a month. The Payment Application shall be accompanied by such supporting documentation as is required by the Contract Documents and also as the Contract Administrator reasonably requires. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the site or at another location agreed to in writing, the Invoice shall also be accompanied by such data, satisfactory to the City, as will establish the City's title to the material and equipment and protect the City's interest therein, including applicable insurance. 12.2 Contractor's Warranty of Title The Contractor warrants and guarantees that title to all Work, materials and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to the City at the time of payment free and clear of all liens, claims, security interests and encumbrances (hereafter in these General Conditions referred to as "Liens"). 12.3 Review of Applications for Progress Payment 12.3.1 The Contractor Administrator and the Project Manager will, within ten (10) days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Invoice for payment, or return the Invoice to the Contractor indicating in writing reasons for refusing to recommend payment. In the latter case, the Contractor may make the necessary corrections and resubmit the Application. Within thirty (30) days of receipt of a correct Invoice and with the Contract Administrator's and the Project Manager's recommendations, pay the Contractor the invoiced amount. 12.3.2 Not Used 12.3.3 Not Used 12.3.4 The Project Manager may refuse to recommend the whole or any part of any payment if, in his/her opinion, it would be incorrect to make such representations to the City. He/she may also refuse to recommend any such payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment previously recommended to such extent as may be necessary in the Project Manager's opinion to protect the City from loss because: a. the Work is defective, or completed Work has been damaged requiring correction or replacement; b. written claims have been made against the City or Liens have been filed in connection with the Work; Page 73 of 103 Packet Pg. 282 4.1.c c. the Job Order Price has been reduced because of Supplemental Job Order(s); d. The City has been required to correct defective Work or complete the Work in accordance with section 11.7; e. of the Contractor's unsatisfactory prosecution of the Work in accordance with the Detailed Scope of Work; f. the Contractor's failure to make payment to a Subcontractor, or for labor, materials or equipment; or g. of quantity adjustment or correction. 12.4 Substantial Completion 12.4.1 When the Contractor considers the entire Work ready for its intended use, the Contractor will certify in writing to the Project Manager that the entire Work is substantially complete and request that the Project Manager issue a Certificate of Substantial Completion. Within a reasonable time thereafter, the Contractor and the Project Manager will make an inspection of the Work to determine the status of completion. If the Project Manager does not consider the Work substantially complete, the Project Manager will notify the Contractor in writing giving his/her reasons. If the Project Manager considers the Work substantially complete, the Project Manager will prepare a Certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative "punch list" of items to be completed or corrected before final payment. A copy of the Certificate of Substantial Completion shall be forwarded to the Contract Administrator. 12.4.2 The City has the right to exclude the Contractor from the Work after the date of Substantial Completion, but will allow the Contractor reasonable access to complete or correct items on the punch list. 12.5 Partial Utilization Use by the City of completed portions of the Work may be accomplished prior to Substantial Completion of all the Work subject to the following: a. The City at any time may request in writing to the Contractor to permit the City to use any part of the Work which is believed to be substantially complete and can be used without significant interference with the other parts of the Work. If the Contractor agrees, the Contractor will certify to the City and the Project Manager that said part of the Work is substantially complete and request the Project Manager to issue a Certificate of Substantial Completion for that part of the Work. Within a reasonable time the City, Contractor and Project Manager will make an inspection of that part of the Work to determine its status of completion. If the Project Manager does not consider that part of the Work to be substantially complete, the Project Manager will notify the Contractor in writing giving his/her reasons. If the Project Manager considers that part of the Work to be substantially complete, the Project Manager will execute and deliver to the Contractor a certificate to that effect, fixing the date of Substantial Completion as to that part of the Work, attaching a tentative list (punch list) of items to be completed or corrected before final payment. The City will have the right to exclude the Contractor from any part of the Work which the Project Manager has so certified to Page 74 of 103 Packet Pg. 283 4.1.c be substantially complete, but will allow the Contractor reasonable access to complete or correct items on the tentative list. b. In lieu of the issuance of a Certificate of Substantial Completion as to part of the Work, the City may take over operation of a facility constituting part of the Work whether or not it is substantially complete if such facility is functionally and separately usable; provided that prior to any such takeover, the City and the Contractor have agreed as to the division of responsibilities between the City and the Contractor for security, operation, safety, maintenance, correction period, heat, utilities and insurance with respect to such facility. 12.6 Final Inspection Upon written notice from Contractor that the Work is complete, the Project Manager will make a final inspection with the Contractor and will notify the Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. The Contractor shall immediately take such measures as are necessary to remedy such deficiencies. 12.7 Final Application for Payment At the time of submission of its Final Application for Payment, the Contractor shall, unless otherwise determined by the Contract Administrator, provide the following information: 12.7.1 an affidavit for the Contractor confirming that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect the City's interests; 12.7.2 a general release executed by the Contractor in a form acceptable to the City waiving, upon receipt of final payment by the Contractor, all claims, except those claims previously made in writing to the City and remaining unsettled at the time of final payment; 12.7.3 all operating manuals, warranties and other deliverables required by the Contract Documents; 12.7.4 if applicable, certified payrolls from the Contractor and all Subcontractors; 12.7.5 "Statement of Intent to Pay Prevailing Wages" and "Affidavit of Wages Paid" from the Contractor and each Subcontractor filed with the City and the Department of Labor and Industries; and 12.7.6 Certification of Use or Deferred Sales Tax Paid or both, and if required by the City, other data establishing payment or satisfaction of obligations, including, but not limited to, receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the City. If a Subcontractor refuses to furnish a release or waiver required by the City, the Contractor may furnish a bond satisfactory to the City to indemnify the City against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the City all money that the City may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. Page 75 of 103 Packet Pg. 284 4.1.c 12.8 Final Payment and Acceptance 12.8.1 If, on the basis of the Project Manager's observation of the Work during construction and final inspection, and the Contract Administrator and Project Manager's review of the final Application for Payment and accompanying documentation, the Project Manager is satisfied that the Work has been completed and the Contractor has fulfilled all of its obligations with regard to construction of the Project, the Project Manager will indicate approval of final payment by signing such invoice. The Contract Administrator will sign the final invoice as well and submit for final payment. The Project Manager will give written notice to the Contractor that the Work is acceptable subject to the provisions of Section 12.9. Otherwise, the Contract Administrator will return the Payment Application to the Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case the Contractor shall make the necessary corrections and resubmit the Application. If the Application and accompanying documentation are appropriate as to form and substance, the City will, within thirty (30) days after receipt, pay the Contractor. 12.8.2 Payment will be made to the Contractor only for those portions of the work that have been fully completed and accepted. 12.9 Contractor's Continuing Obligation The Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither recommendation of any progress or final payment by Project Manager, nor the issuance of a Certificate of Substantial Completion, nor any payment by the City to the Contractor under the Contract Documents, nor any use or occupancy of the Work or any part thereof by the City, nor any act of acceptance by the City nor any failure to do so, nor the issuance of a notice of acceptability by the Project Manager pursuant to section 12.8, nor any correction of Defective Work by the City shall constitute an acceptance of Work not in accordance with the Contract Documents or a release of the Contractor's obligation to perform the Work in accordance with the Contract Documents. 12.10 Waiver of Claims The making and acceptance of final payment shall constitute the Contractor's waiver of all claims by the Contractor against the City other than those previously made in writing and still unsettled. END ARTICLE 12 Page 76 of 103 Packet Pg. 285 4.1.c ARTICLE 13 SUSPENSION OF WORK AND TERMINATION 13.1 Suspend the Work The City may, at any time and without cause, suspend the Work or any portion for a period of not more than thirty (30) calendar days with written notice to the Contractor. Notice will state the date when work will resume. The Contractor will resume the work on said date. The Contractor will be allowed an increase in the Job Order price or an extension of the Job Order completion time or both directly attributable to any suspension if it makes a claim as provided in Article 10 unless suspension of the Work is mutually agreed upon by the City and the Contractor. 13.2 City May Terminate 13.2.1 Upon the occurrence of any one or more of the following events of default: a. Contractor is adjudged bankrupt or insolvent; b. Contractor makes a general assignment for the benefit of creditors; c. a trustee or receiver is appointed for Contractor or for any of Contractor's property; d. Contractor files a petition to take advantage of any debtor's act, or to reorganize under the bankruptcy or similar laws; e. Contractor repeatedly fails to supply sufficient skilled workmen or suitable materials or equipment; f. Contractor repeatedly fails to make prompt payments to Subcontractor or for labor, materials or equipment; g. Contractor disregards laws, ordinances, rules, regulations or orders of any public body having jurisdiction; h. Contractor disregards the authority of Project Manager or Contract Administrator; i. Contractor refuses or fails to prosecute Job Orders or any separable part thereof, with the diligence that will ensure its completion within the Job Order Completion Time or any extension or fails to complete the work within this time; or j. Contractor otherwise violates in any substantial way any provisions of the Contract Documents, this includes without limitation breach of applicable Federal Contract Clauses in a Federally Funded Job Order. The City may, after giving the Contractor and its Surety sixty (60) days' written notice specifying the event of default, terminate the services of the Contractor, exclude the Contractor from the site, and take possession of the Work and of all the Contractor's tools, appliances, equipment and machinery at the site and use the same to the full extent they could be used by the Contractor (without liability to the Contractor for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere, and finish the Work as the City may deem expedient. The City may complete the Work itself or with other contractors. The Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the Job Order Price exceeds the direct and indirect costs of completing Page 77 of 103 Packet Pg. 286 4.1.c the Work, including compensation for additional professional services, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor or its Surety shall pay the difference to the City. The Contractor and its sureties shall be liable for any other damage to the City resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. 13.2.2 Where the Contractor's services have been so terminated by the City, the termination will not affect any rights of the City against the Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due the Contractor by the City will not release the Contractor from liability. 13.2.3 Upon seven (7) days written notice to the Contractor, the City may without cause and without prejudice to any other right or remedy elect to abandon the Work and terminate the Contract. The City will have all remedies in law and equity, including the right to specific performance (or injunction or other appropriate equitable remedy), without further assistance, and the rights to termination or suspension as provided herein. In such case, the Contractor shall be paid for all work completed and accepted as complete by the Project Manager. 13.2.4 Inasmuch as the Contractor can be adequately compensated by money damages for any breach of this Contract, which may be committed by the City, the Contractor expressly agrees that no default, act or omission of the City shall constitute a material breach of this Contract, entitling the Contractor to cancel or rescind the Contract (unless the City directs the Contractor to do so) or to suspend or abandon performance. 13.2.5 If there is a dispute regarding a Federally Funded Job Order, the parties will use the dispute resolution in the Federal Contract Clauses, if any. 13.2.6 Unless otherwise directed by the City, the Contractor shall continue performance under this Contract while matters in dispute are being resolved 13.3 Termination for Convenience 13.3.1 In addition to the City's other termination rights, the City may terminate the Contract for convenience. Upon ten (10) days' written notice to the Contractor, the City may, for its convenience and without cause, elect to terminate this Contract or any portion of this Contract. 13.3.2 If the Work or any portion thereof is terminated for convenience, the Contractor shall, subject to the limitation set forth in 13.3.3 below, be entitled to be paid that portion of the Job Order Price that corresponds to the percentage of work that is complete and accepted, in accordance with the Contract Documents, but shall not be entitled to any other costs or damages whatsoever including without limitation fee or profit on terminated Work. If the Contractor has any property in its possession belonging to the City, the Contractor will account for the same, and dispose of it in the manner the City directs. 13.3.3 The total sum to be paid to the Contractor under this Section 13.3 shall not exceed the Job Order Price(s) outstanding at the time of termination, as reduced by the amount of Page 78 of 103 Packet Pg. 287 4.1.c payments otherwise made, the price of Work not terminated, and as otherwise permitted by this Contract. The amounts payable to the Contractor shall exclude the fair value of property not under the City's control which is destroyed, lost, stolen or damaged so as to become undeliverable to the City. 13.3.4 Any claim, request for equitable adjustment or other demand for extra compensation or time extension by the Contractor arising from or related to acts, events, occurrences or omissions prior to the effective date of the convenience termination shall continue to be subject to and resolved in accordance with the rules (contractual or legal, express or implied) in effect prior to the termination. The convenience termination will not convert this Contract into a cost reimbursement contract. 13.4 Minimum Contract Value Not Achieved If, in the Base Term, the City, at no fault of the Job Order Contractor, fails to issue Job Orders totaling at least the Minimum Contract Value, then the Contractor's sole remedy is as set forth in RCW 39.10.440(7). 13.5 Contractor May Stop Work or Terminate If, through no act or fault of the Contractor or its subcontractors, the Work is suspended for a period of more than sixty (60) days by the City or under an order of court or other public authority, then the Contractor may, upon seven (7) days' written notice to the City, terminate the Contract and recover from the City payment for all Work completed and accepted. ARTICLE 14 NOT USED END OF ARTICLE 13 END OF ARTICLE 14 Page 79 of 103 Packet Pg. 288 4.1.c ARTICLE 15 MISCELLANEOUS 15.1 General Requirements 15.1.1 Should the City or the Contractor suffer injury or damage to its person or property because of any error, omission or act of the other party or of any of the other party's employees or agents or others for whose acts the other party is legally liable, claim shall be made in writing to the other party within a reasonable time of the first observance of such injury or damage. 15.1.2 The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon Contractor by sections 11.1, and 13.2 and all of the rights and remedies available to City thereunder, shall be in addition to, and shall not be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by law or contract, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this section shall be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. All representations, warranties and guarantees made in the Contract Documents shall survive final payment and termination or completion of this Contract. 15.2 Giving Notice Whenever any provision of the Contract Documents requires the giving of written notice it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 15.3 Computation of Time When any period of time is referred to in the Contract Documents by days, it shall be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation. 15.4 Non -Discrimination The Contractor shall not discriminate on the grounds of race, color, sex or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor shall not participate either directly or indirectly in such discrimination, including discrimination in employment practices. In the event of the Contractor's noncompliance with the nondiscrimination provisions of the Contract Documents or applicable law, the City may impose such sanctions as it, or the City's funding agencies, may determine to be appropriate, including, but not limited to: (a) withholding of payments to the Contractor until the Contractor complies, and (b) termination or suspension of the Contract, in whole or in part. Page 80 of 103 Packet Pg. 289 4.1.c 15.5 Contractor Selection 15.5.1 The City may award an individual Job Order to any selected Contractor. Selection of the Contractor and award of the Job Order will be in compliance with established City procedures and based on one or more of the following criteria: 15.5.2 Rotational selection among all Contractors, unless otherwise determined by the City. 15.5.3 Evaluation of past and current performance on Job Orders of a similar nature and type of work, project size, construction management challenges, schedule performance, design management requirements, etc. 15.5.4 Balancing Job Order volume among Contractors. 15.5.5 Price, as determined by the Adjustment Factors of the Contractors. 15.5.6 Limitations posed by bonding capacity of the Contractors. 15.5.7 Other appropriate criteria as deemed in the best interest of the City. 15.6 Contractor's Personnel 15.6.1 The Contractor shall assign a full-time person as its representative for this Contract. This person shall be acceptable to the City and shall have a cell phone at which he or she can be reached at all times. 15.6.2 The Contractor shall have an office within the City of Edmonds or within close proximity (no more than 20 miles) of the City of Edmonds. 15.6.3 The Contractor shall also have at all times an Office Manager and a Superintendent assigned to this Contract. Additional staff will be provided depending on the volume of work. For each Job Order issued, the Contractor shall identify the Superintendent responsible for that Job Order. The Superintendent shall be reachable 24 hours a day, seven days a week. If the named Superintendent is not available because of illness or vacation or the like, the Contractor shall notify the City of a substitute Superintendent. At all times, the Contractor shall provide at least one Superintendent for every four Job Orders. Whenever, in the sole discretion of the City, the Contractor is not providing a sufficient level of supervision, the City may direct the Contractor to increase the level of supervision for any or all projects, including but not limited to the right to direct the Contractor to assign a full time, dedicated Superintendent for any project; submit daily management, inspection, activity, and planning reports; substitute subcontractors; submit daily photographs of the work in place and the work areas prepared for the next day's work; and develop a site specific quality control program, all at no cost to the City. END ARTICLE 15 Page 81 of 103 Packet Pg. 290 4.1.c ARTICLE 16 JOC PROCEDURE FOR ORDERING WORK 16.1 Initiation of a Job Order. 16.1.1 As the need exists, the Contract Administrator will notify the Contractor of a Project, schedule a Joint Scope Meeting, and issue a Notice of Joint Scope Meeting. The Contractor does not have the right to refuse to perform any Project, Pre -priced Task, or Non-Prepriced Task. 16.1.2 The Contractor shall attend the Joint Scope Meeting and discuss, at a minimum: a. general scope of the work to be performed; b. possible alternatives for performing the work and value engineering; c. access to the site and protocol for admission; d. hours of operation; e. staging area and areas that are off-limits; f. requirements for catalog cuts, technical data, samples and shop drawings; g. requirements for professional services, sketches, drawings, and specifications; h. construction duration, due date for Detailed Scope of Work; i. the presence of hazardous materials; j. organization of Price Proposal — by location, by corner, etc. k. date on which the Job Order Proposal is due. I. if the Job Order will be a Federally Funded Job Order, the applicable Federal Contract Clauses, such as, for example, Davis -Bacon and DBE requirements. 16.1.3 Upon completion of the joint scoping process, the Contractor will prepare a draft Detailed Scope of Work referencing any sketches, drawings, photographs, and specifications required to document accurately the work to be accomplished. The City shall review the Detailed Scope of Work and request any required changes or modifications. When an acceptable Detailed Scope of Work is complete, the City will issue a Request for Proposal that will require the Contractor to prepare a Job Order Proposal within a certain period of time. The Detailed Scope of Work will be the basis on which the Contractor will develop its Job Order Proposal and the City will evaluate the same. The Contractor does not have the right to refuse to perform any task or any work in connection with a particular Project. 16.1.4 The City may, at its option, include quantities in the Detailed Scope of Work if it helps to define the Detailed Scope of Work, if the actual quantities required are not known or cannot be determined at the time the Detailed Scope of Work is prepared, if the Contractor and the City cannot agree on the quantities required, or for any other reason as determined by the City. In all such cases, the City shall issue a Supplemental Job Order adjusting the quantities appearing in the Detailed Scope of Work to the actual quantities. 16.1.5 If the Contractor requires additional information to clarify the Detailed Scope of Work before preparing the Job Order Proposal, the Contractor will make such request quickly so that the Job Order Proposal can be submitted on time. 16.2 Preparation of the Price Proposal. 16.2.1 The Contractor's Job Order Proposal shall include, at a minimum: a. Job Order Price Proposal; Page 82 of 103 Packet Pg. 291 4.1.c b. Support documentation for Non-Prepriced Tasks; c. Required drawings or sketches; d. List of anticipated Subcontractors including a MBE/WBE Certification if required; e. Construction schedule; f. Other requested documents. 16.2.2 The Job Order Price shall be the value of the approved Job Order Price Proposal. 16.2.3 The value of the Job Order Price Proposal shall be calculated by summing the total of the calculations for each Pre -priced Tasks (Unit Price x quantity x Adjustment Factor) plus the value of all Non-Prepriced Tasks. 16.2.4 The Contractor will prepare Price Proposals in accordance with the following: a. Pre -priced Task: A task described for which a unit price is set forth in the Construction Task Catalog°. The Contractor shall select the appropriate Pre - priced Tasks, enter the accurate quantities, and select the appropriate Adjustment Factor to be used for each such Pre -priced Task. The Contractor shall use the Adjustment Factors in effect on the date the Price Proposal is due, even though the Job Order may be issued after the Adjustment Factors have been updated. b. Non-Prepriced Task: A task that is not set forth in the Construction Task Catalog°. c. Information submitted in support of Non-Prepriced Tasks shall include, but not limited to the following: 1) Catalog cuts, specifications, technical data, drawings, or other information as required to evaluate the task. 2) If the Contractor will perform Work with its own forces, it must submit three (3) independent quotes for all material to be installed and will use Pre -priced Tasks for labor and equipment from the Construction Task Catalog°. If the Work is to be subcontracted, the Contractor must submit three (3) independent quotes from subcontractors. The Contractor will not submit a quote or bid from any supplier or subcontractor that the Contractor is not prepared to use. The City may require additional quotes and bids if the suppliers or subcontractors are not acceptable or if the prices are not reasonable. If three (3) quotes or bids cannot be obtained, the Contractor will provide the reason in writing for the City's approval. If approved, less than three (3) quotes or bids will be allowed. 3) After a Non-Prepriced Task has been approved by the City, the Unit Price for such task will be established, following approval by the City, and fixed as a permanent Non- Prepriced Task which will no longer require price justification. 4) The City's determination as to whether a task is a Pre -priced Task or a Non-Prepriced Task shall be final, binding and conclusive as to the Contractor. Page 83 of 103 Packet Pg. 292 4.1.c 16.2.5 Whenever, because of trade jurisdiction rules or small quantities, the cost of a minor task in the Job Order Price Proposal is less than the cost of the actual labor and material to perform such task, the City may permit the Contractor to be paid for such task as a Non- Prepriced Task, or use Pre -priced labor tasks and material component pricing to cover the actual costs incurred. Provided, however, that there is no other work for that trade on the Project or other work for that trade cannot be scheduled at the same time and the final charge does not exceed One Thousand Dollars ($1,000). 16.2.6 The Contractor shall make the necessary arrangements for and obtain all filings and permits required for the Work, including the preparation of all drawings, sketches, calculations and other documents and information that may be required therefor. If the N Contractor is required to pay an application fee for filing a project, a fee to obtain a building permit, or any other permit fee to the City, State or some other governmental or regulatory agency, then the amount of such fee paid by the Contractor for which a receipt is obtained 0 shall be treated as a Reimbursable Task to be paid without mark-up. The cost of L_, expediting services or equipment use fees are not reimbursable. o 0 16.2.7 The Contractor shall provide incidental engineering and architectural services required in connection with a particular Job Order including drawings and information required for 3 filing. Q 16.2.8 The Contractor's Job Order Proposal shall be submitted by the date indicated on the Request for Proposal. All incomplete Job Order Proposals shall be rejected. The time allowed for preparation of the Contractor's Job Order Proposal will depend on the complexity and urgency of the Job Order but should average between seven and fourteen days. On complex Job Orders, such as Job Orders requiring incidental engineering/architectural drawings and approvals and permits, allowance will be made to provide adequate time for preparation and submittal of the necessary documents. 16.2.9 In immediate response situations and minor maintenance and repair Job Orders requiring immediate completion, the Job Order Proposal may be required quickly and the due date will be so indicated on the Request for Proposal or, as described below, the Contractor may be directed to begin work immediately with the paperwork to follow. 16.2.10 For purposes of Using the Construction Task Catalog®, the project site is defined as the exterior perimeter of a building. For work not performed in a building, the project site is defined as the limits of the work area. 16.2.11 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the price submitted. It is the Contractor's responsibility to include the necessary tasks and quantities in the Job Order Price Proposal and apply the appropriate Adjustment Factor(s) prior to delivering it to the City. 16.2.12 If the Contractor requires clarifications or additional information regarding the Detailed Scope of work in order to prepare the Job Order Proposal, the request must be submitted Page 84 of 103 Packet Pg. 293 4.1.c so that the submittal of the Job Order Proposal is not delayed. 16.2.13 In the event the Contractor is required to work in a secured facility or location where labor, materials, and equipment must be inspected, the Contractor will be permitted to add labor hours to the Job Order Price Proposal to account for lost time as a result of such inspection. 16.2.14 The final price submitted for Non-Prepriced Tasks shall be according to the following formula: For Non-Prepriced Tasks Performed with Contractor's Own Forces: A = The hourly rate for each trade classification not in the Construction Task Catalog° multiplied by the quantity; B = The rate for each piece of Equipment not in the Construction Task Catalog° multiplied by the quantity; C = Lowest of three (3) independent quotes for all materials, unless a lower number of quotes is approved by the Owner with a letter of justification. Total for a Non-Prepriced Tasks performed with Contractor's Own Forces _ (A+B+C) x Non-Prepriced Task Adjustment Factor For Non-Prepriced Tasks Performed by Subcontractors: If the Non-Prepriced Task is to be subcontracted, the Contractor must submit three (3) independent quotes for the work. D = Lowest of three (3) Subcontractor Quotes Total Cost for Non-Prepriced Tasks performed by Subcontractors = D x Non-Prepriced Task Adjustment Factor a. After a Non-Prepriced Task has been approved by the City, the Unit Price for such task will be established, and fixed as a permanent Non-Prepriced Task which will no longer require price justification. b. The City's determination as to whether a task is a Pre -priced Task or a Non-Prepriced Task will be final, binding and conclusive to the Contractor. 16.2.15 The Contractor will make the necessary arrangements for and obtain all filings and permits required for the Work, including the preparation of all drawings, sketches, calculations and other documents and information that may be required. If the Contractor is required to pay an application fee for filing a project, a fee to obtain a building permit, or any other permit fee to the City, State or some other governmental or regulatory agency, then the amount of such fee paid for which a receipt is obtained will be treated as a Reimbursable Task to be paid without markup. Page 85 of 103 Packet Pg. 294 4.1.c 16.2.16 The Contractor shall provide incidental engineering and architectural services required in connection with a particular Job Order including drawings and information required for filing. 16.2.17 The Contractor's Job Order Proposal is to be submitted by the date indicated on the Request for Proposal. All incomplete Job Order Proposals shall be rejected. The time allowed for preparation of the Contractor's Job Order Proposal will depend on the complexity and urgency of the Job Order but should average between seven (7) and fourteen (14) days. On complex Job Orders, such as Job Orders requiring incidental engineering/architectural drawings and approvals and permits, allowance will be made to provide adequate time for preparation and submittal of the necessary documents. 16.2.18 In emergency situations and minor maintenance and repair Job Orders requiring immediate completion, the Job Order Proposal may be required quickly and the due date will be so indicated on the Request for Proposal. 16.2.19 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the price submitted. It is the Contractor's responsibility to include the necessary tasks and quantities in the Price Proposal and apply the appropriate Adjustment Factor(s) prior to delivering it to the City. 16.2.20 If the Contractor requires clarifications or additional information regarding the scope of work in order to prepare the Job Order Proposal, the request must be submitted so that the submittal of the Job Order Proposal is not delayed. 16.3 Review of the Job Order Proposal and Issuance of the Job Order 16.3.1 The City will evaluate the entire Price Proposal and compare these with the City's estimate of the Detailed Scope of Work to determine the reasonableness of approach, including the appropriateness of the tasks and quantities proposed. All incomplete Job Order Proposals will be rejected. The City will review the Price Proposal to determine the accuracy of the Pre -priced Tasks, quantities, Adjustment Factors, and Non-Prepriced Tasks. 16.3.2 The Contractor may choose the means and methods of construction; subject however, to the City's right to reject any means and methods proposed by the Contractor that: a. Will constitute or create a hazard to the work, or to persons or property; or b. Will not produce finished Work in accordance with the terms of the Contract; or c. Unnecessarily increases the price of the Job Order when alternative means and methods are available. 16.3.3 The City reserves the right to reject a Job Order Proposal or cancel a Project for any reason. The City also reserves the right not to issue a Job Order if it is determined to Page 86 of 103 Packet Pg. 295 4.1.c be in the best interests of the City. The City may perform such work by other means. The Contractor will not recover any costs arising out of or related to the development of the Job Order including but not limited to the costs to attend the Joint Scope Meeting, review the Detailed Scope of Work, prepare a Job Order Proposal including incidental architectural and engineering services, subcontractor costs, and the costs to review the Job Order Proposal with the City. 16.3.4 By submitting a Job Order Proposal to the City, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the lump sum price submitted. It is the Contractor's responsibility to include the necessary Pre- priced Tasks and Non-Prepriced Tasks and quantities in the Job Order Price Proposal prior to delivering it to the City. 16.3.5 It is the Contractor's responsibility to include the necessary Pre -priced Tasks and Non-Prepriced Tasks, accurate quantities, and correct Adjustment Factors in the Price Proposal prior to delivering it to the City. 16.3.6 If the Job Order Proposal is found to be complete and accurate, The City may issue a Job Order to the Contractor. 16.3.7 The Job Order signed by The City and delivered to the Contractor constitutes The City's acceptance of the Contractor's Job Order Proposal. 16.3.8 A Job Order will reference the Detailed Scope of Work and set forth the Job Order Completion Time and the Job Order Price. The Job Order Price shall be the value of the approved Price Proposal. 16.3.9 All clauses of this Contract shall apply to each Job Order. 16.3.10 The Contractor will be paid the Job Order Price for completing the Detailed Scope of Work within the Job Order Completion Time. 16.3.11 The City, without invalidating the Job Order, may order changes in the Detailed Scope of Work by adding to, changing, or deleting from the Detailed Scope of Work, by issuing a Supplemental Job Order. All Supplemental Job Orders shall be developed in accordance with these procedures for ordering work. 16.3.12 The City may decide not to issue a Job Order under development, may decide to cancel a Job Order or any portion of a Job Order, or cancel a Project or any portion of a Project, for any reason. In such case, the Contractor shall not recover any costs arising out of or related to the development of the Job Order including but not limited to attending the Joint Scope Meeting, preparing or reviewing the Detailed Scope of Work, preparing a Job Order Proposal (including incidental architectural and engineering services), subcontractor costs, or reviewing the Job Order Proposal with The City. The City may perform such work by other means. 16.3.13 A Job Order will reference the Detailed Scope of Work and set forth the Job Order Completion Time, and the Job Order Price. A separate Job Order will be issued for each Project. Extra work, credits, and deletions will be contained in a Page 87 of 103 Packet Pg. 296 4.1.c Supplemental Job Order. The Job Order Price shall be a lump sum, fixed price for the completion of the Detailed Scope of Work. 16.3.14 Each Job Order provided to the Contractor will reference the Detailed Scope of Work and set forth the Job Order Price and the Job Order Completion Time. All clauses of this Contract shall be applicable to each Job Order. The Job Order, signed by the City and delivered to the Contractor constitutes the City's acceptance of the Contractor's Job Order Proposal. A signed copy of the Job Order will be provided to the Contractor. 16.3.15 In the event that immediate emergency response is necessary, the Contractor shall be required to follow alternative procedures as established by the City. The Contractor shall begin work as directed notwithstanding the absence of a fully developed Request for Proposal, Detailed Scope of Work, or Job Order. The c Contractor shall be compensated for such work as if the work had been ordered under the standard procedures. The Contractor must submit to the City's Representative, their emergency procedure/ safety plan prior to starting work. The Contractor must be o responsible for quality assurance and quality control. 0 L R 16.3.16 Federally Funded Job Orders g L When the City initiates a Job Order, the City will specify whether the Job Order is a Federally ou Funded Job Order or not. If the Job Order has no such specification, then the Job Order is not a Federally Funded Job Order. A Federally Funded Job Order is subject to the Federal 0 Contract Clauses, which will be provided by the City. In the event of irreconcilable conflict between the Federal Contract Clauses applicable to a Federally Funded Job Order and other 0 Contract Documents, such Federal Contract Clauses control. The Federal Contract Clauses do not apply to Job Orders that are not Federally Funded Job Orders. M aD END ARTICLE 16 r Q r c E r a Page 88 of 103 Packet Pg. 297 4.1.c ARTICLE 17 ENGINEERING NEWS RECORD CONSTRUCTION COST INDICES ADJUSTMENT OF THE ADJUSTMENT FACTORS 17.1 Economic Price Adjustment: The Adjustment Factors may be updated on each anniversary of the Contract date to account for changes in construction costs, provided, the Contractor requests in writing, approximately fourteen (14) to thirty (30) days prior to the anniversary of the Contract date, that the Adjustment Factors be updated. Such request shall be delivered to the City and to the Consultant/Gordian. In the event the Contractor fails to deliver the request timely, then the City will determine the date on which the Adjustment Factors will be updated, but in no event will such date be later than thirty (30) days after the written request is received by the City. Thereafter, the Contractor's Adjustment Factors will be adjusted according to the following: 17.2 The Contractor's Normal Working Hours and Other than Normal Working Hours Adjustment Factors will be adjusted according to the following: 17.2.1 A Base Year Index will be calculated by averaging the 12-month Construction Cost Indices (CCI) for Seattle, WA, published in the Engineering News Record (ENR) for the twelve (12) months immediately prior to the month of the bid due date (e.g. April bid date, Base Year Index is April of the prior year to March of the bid date year). 17.2.2 A Current Year Index will be calculated by averaging the 12-month Construction Cost Indices (CCI) for Seattle, WA, published in the Engineering News Record (ENR) for the twelve (12) months beginning with the month of anniversary of the bid due date (e.g. April bid date, Current Year Index is April of the prior year to March of the current year). 17.2.3 The Economic Price Adjustment will be calculated by dividing the Current Year Index by the Base Year Index. 17.2.4 The Contractor's original Adjustment Factors will be multiplied by the Economic Price Adjustment to obtain the Contractor's new Adjustment Factors effective for the next twelve (12) months. 17.2.5 Averages shall be obtained by summing the 12-month indices and dividing by twelve (12). 17.3 All calculations in this article will be carried to the fifth decimal place and rounded to the fourth decimal place. The following rules shall be used for rounding: 17.3.1 The fourth decimal place shall be rounded up when the fifth decimal place is five (5) or greater. 17.3.2 The fourth decimal place shall remain unchanged when the fifth decimal place is less than five (5). Page 89 of 103 Packet Pg. 298 4.1.c 17.4 Engineering News Record occasionally revises indices. Engineering News Record Construction Cost Indices used in the calculations described above will be those currently published at the time the Economic Price Adjustment calculation is performed. No retroactive adjustments will be made as a result of an Engineering News Record revision. Revised Construction Cost Indices, if any, will be used in subsequent calculations. 17.5 Under all circumstances, should the Contractor submit a Job Order Proposal with inaccurate Adjustment Factors, the act of submission by the Contractor is a waiver of all rights to any further compensation above the Job Order Price submitted in the Job Order Proposal. 17.6 The Contractor cannot delay submission of the Job Order Proposal past the due date to take advantage of a scheduled update of the Adjustment Factors. In that event, the Contractor shall use the Adjustment Factors that would have been in effect without the delay. 17.7 The Adjustment Factor for Non-Prepriced Tasks will remain constant for the duration of the Contract. END ARTICLE 17 Page 90 of 103 Packet Pg. 299 4.1.c ARTICLE 18 Software, JOC System License, and Cooperative Purchasing 18.1 JOC System License 18.1.1 The City selected The Gordian Group's (Gordian) Job Order Contracting (JOC) System for their JOC program. The Gordian JOC Solution includes Gordian's proprietary JOC System Software and JOC Applications, construction cost data (Construction Task Catalog@,) which will be used by the Contractor solely for the purpose of fulfilling its obligations under this Contract, including preparation and submission of Job Order Proposals, subcontractor lists, and other requirements specified by the City. Contractor's use, in whole or in part, of Gordian's JOC Applications, Construction Task Catalog® and other proprietary materials provided by Gordian for any purpose other than to execute work under this Contract for the CITY is strictly prohibited unless otherwise approved in writing by Gordian. The Contractor shall be required to execute Gordian's JOC System License and Fee Agreement and pay a one percent (1 %) JOC System License Fee to obtain access to the Gordian JOC Solution. 18.2 Cooperative Purchasing 18.2.1 RCW 39.34 allows cooperative purchasing between public agencies (political subdivisions) in the State of Washington. Public agencies that file an Interlocal Joint Purchasing Agreement with the City of Edmonds may also wish to procure the goods and/or services herein offered by the selected Contractor. The selected Contractor shall have the option of extending its offer to the City of Edmonds to other agencies for the same cost, terms and conditions. 18.2.2 The City of Edmonds does not accept any responsibility for agreements, contracts or purchase orders issued by other public agencies to the Contractor. Each public agency accepts responsibility for compliance with any additional or varying laws and regulations governing purchase by or on behalf of the public agency. The City of Edmonds accepts no responsibility for the performance of the Contractor in providing goods and/or services to other public agencies, nor any responsibility for the payment price to the Contractor for other public agency purchases. END ARTICLE 18 Page 91 of 103 Packet Pg. 300 4.1.c ARTICLE 19 COMPLIANCE WITH THE JOC RCW REQUIREMENTS 19.1 CONTRACTOR'S RESPONSIBILITY Contractor acknowledges that it has carefully examined the RFP documents and the Job Order Contracting RCW's. For example, the Contract is subject to RCW 39.10.200; 39.10.210; 39.10.420; 39.10.430; 39.10.440; 39.10.450; 39.10.460; and, 39.10.470. 19.2 MAXIMUM JOB ORDER VALUE The maximum dollar amount for an individual Job Order is Five Hundred Thousand dollars ($500,000) pretax. All Job Orders for the same project (original plus any Supplemental Job Orders) shall be treated as a single Job Order for the purpose of the $500,000 limit. A Job Order issued for a particular project may not exceed $500,000 ro- excluding sales tax and Gordian fees. As required by RCW 39.10.450(3), no more than L twenty percent of the dollar value of a Job Order may consist of items of work not contained in the Unit Price book. As required by RCW 39.10.450(4), any new permanent, 0 enclosed building space constructed under a Job Order shall not exceed three thousand (3,000) gross square feet. -0 CU 3 19.3 ADJUSTMENT FACTORS AND CONSTRUCTION TASK CATALOG® g The Contractor is paid for the Job Order based upon a fixed percentage multiplier o (Adjustment Factor) and fixed prices based on The Gordian Group's Construction Task 2 Catalog° agreed to in the initial contract. Everything that is to be included in the Contractor's Adjustment Factors is listed and identified in the Construction Task U Catalog° under Construction Task Catalog° Section and "Using the Construction Task 6. Catalog°," pages 00-1 through 00-7. U) M 19.4 PREVAILING WAGE RATES TO BE PAID a E A. Prior to making any payment, the City must receive a Labor and Industries approved copy of the "Statement of Intent to Pay Prevailing Wages" form from the Contractor, all a sub -contractors and lower -tiers. Each progress payment application is to include a r signed statement that prevailing wages have been paid. With final invoicing of a project, the City must receive a Labor and Industries certified copy of the "Affidavit of Wages E Paid" form from the Contractor, all sub -contractors and lower -tiers. B. It is the Contractor's sole responsibility to ensure that the approved Intents and certified r a Affidavits are filed from all sub -contractors and lower -tiers and filed with the City for each Job Order. C. Job Order contractors shall pay prevailing wages for all work that would otherwise be subject to the requirements of chapter 39.12 RCW. Prevailing wages for all work performed pursuant to each Job Order must be the rates in effect at the time the individual Job Order is issued. D. If the Job Order is Funded by the Federal Transit Administration, the Davis -Bacon Act and Copeland Anti -Kickback applies. Page 92 of 103 Packet Pg. 301 4.1.c 19.5 EXECUTED OMWBE PLAN A. Per RCW 39.10.450, a public body may issue no Job Orders under a Job Order Contract until it has approved, in consultation with the Office of Minority and Women's Business Enterprises or the equivalent local agency, a plan prepared by the Contractor that equitably spreads certified women and minority business enterprise subcontracting opportunities, to the extent permitted by the Washington state civil rights act, RCW 49.60.400, among the various subcontract disciplines. B. The executed plan is required before the City will sign the Contract. 19.6 SUBCONTRACTING At least ninety percent (90%) of all work contained in a Job Order Contract must be subcontracted to entities other than the Contractor. The Contractor must distribute contracts as equitably as possible among qualified and available subcontractors including minority and woman -owned subcontractors to the extent permitted by law. 19.7 RETAINAGE The City requires each Contractor to provide a Retainage Bond in the penal sum equal to 5% of the Maximum Contract Value or $100,000 whichever is greater. If the cumulative amount of required retainage under Chapter 60.28 RCW exceeds this amount, the Contractor shall deliver a new Retainage Bond as required by the City. The Contractor must use a Retainage Bond form acceptable to the City. 19.8 PUBLIC RECORDS Under Washington state public records laws, records and documents including but not limited to written, printed, graphic, electronic, photographic or voice mail materials and/or transcriptions, recordings or reproductions provided to City or used by the City in connection to the Contract Documents become a public record subject to mandatory disclosure upon request by any person, unless the records and documents are exempt from public disclosure by a specific provision of law. The City has no obligation to enforce any exemption. Contractor will fully cooperate with the City to comply with the Washington state public records laws. 19.9 AUDITS AND RETENTION OF RECORDS A. All of the Project Records related to this Contract shall be open to inspection, audit, and/or copying by the City: i. During the Contract Time; For a period of not less than six (6) years after the date of Final Acceptance of the last Work or termination of the Contract. The Contractor shall also ensure that the wage, payroll and cost records of all Subcontractors and Suppliers at all tiers is retained and open to similar inspection or audit for the period required above by incorporating the provisions of this Audit section into any agreements with Subcontractors or Suppliers related to this Contract; and Page 93 of 103 Packet Pg. 302 4.1.c iii. If any Claim, audit, or litigation arising out of, in connection with, or related to this Contract is initiated, all documents and records shall be resolved or completed, whichever occurs later. B. The Contractor, its Subcontractors and Suppliers will make a good faith effort to cooperate with the City when the City gives notice of its need to inspect or audit Project Records. Cooperation will include assistance as may be reasonably required in the course of inspection or audit, including access to personnel with knowledge of the contents of the records being inspected or audited so that the information in the records is properly understood by the persons performing the inspection or audit. Cooperation will also include establishing a specific mutually agreeable timetable for making the records available for inspection by the City and its designee. Unless otherwise agreed, if the Contractor, its Subcontractors and Suppliers cannot make at least some of the relevant records available for inspection within fourteen (14) days of the City's written request, cooperation will necessarily entail providing the City with a reasonable explanation for the delay in production of records. Failure to cooperate will impact future responsibility determinations. C. The Contractor agrees that no Claim will be made against the City for the Work described herein unless the Contractor makes available to the City all documents and records. Failure to maintain and retain sufficient records to allow the City to verify all costs or damages or failure to permit the City or its designee access to the books and records shall constitute a waiver of the rights of the Contractor, Subcontractor, and Supplier to claim or be compensated for any damages, additional time or money under this Contract and shall bar any recovery there under. D. Inspection, audit, and/or copying of Project Records may be performed by the City at any time with not less than fourteen (14) days written notice; provided however, if an audit is to be commenced more than sixty (60) days after Final Acceptance of the Contract, the Contractor will be given thirty (30) days' notice of the time when the audit or inspection is to begin. E. The Contractor and its Subcontractors and Suppliers shall provide adequate facilities, acceptable to the City, for inspection, auditing, and/or copying during normal business hours. F. No additional compensation will be provided to the Contractor, its Subcontractors, or Suppliers for time or money spent in complying with the requirements of this Audit section. If the Contractor is formally dissolved, assigns or otherwise divests itself of its legal capacity under this Contract, then it will immediately notify the City and preserve such records, at its expense, as directed by the City. G. This Audit Section shall survive for six (6) years after the termination or expiration of this Contract, or conclusion of all Claims, audits or litigation, whichever occurs later. H. At a minimum, the following documents shall be considered Project Records and made available for inspection, auditing and copying: i. Daily time cards, time -sheets, daily reports, inspection reports, and supervisor's reports; ii. Insurance, welfare, and benefits records; Page 94 of 103 Packet Pg. 303 4.1.c iii. Payroll registers; iv. Earnings records; v. All relevant tax forms and records, including any state and federal payroll tax rate schedules governing the employer's payroll tax rates paid on behalf of employees that work on the project and any payroll tax forms summarizing the amounts paid; vi. Material invoices and requisitions; vii. Material cost distribution worksheets; viii. Equipment records including a list of company -owned equipment and an equipment distribution report containing equipment descriptions, equipment number, equipment — in rates, recorded equipment hours, phase or cost codes, dates, and any other relevant information as related to how equipment was recorded to the project; ix. Contractors' rental agencies', Subcontractors', and lower tier subcontractors' 0 U invoices; L � L x. Contracts, purchase orders and agreements between the Contractor and each of its 0 Subcontractors, and all lower tier subcontractor contracts and supplier contracts; A. Subcontractors' and lower tier subcontractors' payment certificates/payment 3 applications; a xii. Canceled checks, payroll and Contractors; o xiii. Job cost reports, including both a job cost summary report comparing budgeted L amounts to recorded amounts by cost type and phase or cost code and a job cost o history/detail/transaction report listing each individual transaction by phase or cost 00 code; .0 xiv. General Ledger; xv. Cash disbursements journal; M xvi. All documents which relate to each and every claim together with all documents a� E which support the amount of damages to each claim; xvii. All schedule documents, including man -loaded schedules, work plans, planned a resource codes, phasing documents and summaries; xviii. All other documents, including email, related to the Project, Claims, or E Supplemental Job Orders; a xix. Any documentation or information relied upon for the purposes of translating the bid amounts to original budget amounts; xx. Original budget and updated budgets used for tracking job performance throughout the project; xxi. Labor distribution reports summarizing straight time, overtime, and double time by employee and also separately summarizing base wage amounts versus labor burden and benefit amounts; Page 95 of 103 Packet Pg. 304 4.1.c xxii. Copies of all draft and approved change orders including a supplementary documentation or information relied upon for the purposes of pricing the change orders; xxiii. To the extent any of the above -referenced records exist in machine readable format, the Contractor will make them available in that form. This requirement specifically includes but is not limited to an obligation to provide the information and access in the native format in which it is maintained by the Contractor. The Contractor will, as reasonably requested by the City, provide read-only access to and reasonable technical support necessary to make use of any enterprise or legacy software utilized by the Contractor to manipulate and/or store the relevant data. 19.10 PUBLIC NOTICE REQUIREMENTS The Contractor will publish notification of intent to perform public works projects at the beginning of each contract year in a statewide publication and in a legal newspaper of general circulation in every county in which the public works projects are anticipated, per RCW 39.10.440 (5). 19.11 PUBLIC INSPECTION OF CERTAIN RECORDS -PROTECTION OF TRADE SECRETS A. RCW 39.10.470(1) and (2) state as follows: (1) Except as provided in subsections (2) and (3) of this section, all proceedings, records, contracts, and other public records relating to alternative public works transactions under this chapter shall be open to the inspection of any interested person, firm, or corporation in accordance with Chapter 42.56 RCW. (2) Trade secrets, as defined in RCW 19.108.010, or other proprietary information submitted by a bidder, offeror, or contractor in connection with an alternative public works transaction under this chapter shall not be subject to Chapter 42.56 RCW if the bidder, offeror, or contractor specifically states in writing the reasons why protection is necessary, and identifies the data or materials to be protected. B. The following shall govern to the application of RCW 39.10.470 to this Contract and the Work: 1. Proprietary information and trade secrets must be clearly identified as "CONFIDENTIAL." 2. If any document or record does not clearly identify the "CONFIDENTIAL" portions, the City will not notify the Contractor that such documents and records will be made available for inspection and copying, and the City may publicly disclose such non - clearly identified portions with no liability whatsoever to the Contractor. 3. If a request is made for disclosure of material or any portion marked "CONFIDENTIAL," the City will determine whether the material should be made available under the law. If the City determines that the material is subject to disclosure, the City will seek to notify the Contractor of the request and allow the proposer ten (10) business days after such notification to take appropriate legal action in Snohomish County Superior Court at the Contractor's sole expense and Page 96 of 103 Packet Pg. 305 4.1.c liability. If the Contractor does not within ten (10) business days serve the Office of the City Attorney with a copy of an order entered by the Superior Court that expressly prohibits the City from disclosure of the material marked "CONFIDENTIAL," then the proposer will be deemed to have consented to the public disclosure of the material marked "Confidential" and the City may publicly disclose such material without any liability whatsoever to Contractor. 4. To the extent that the City withholds from disclosure all or any portion of Contractor's material marked "CONFIDENTIAL", the Contractor shall indemnify, defend and hold harmless the City of Edmonds from all lawsuits, liabilities, losses, damages, penalties, attorneys' fees and costs the City incurs arising from or relating to such withholding from disclosure. L END OF SECTION 19 0 U L L D 0 i L 3 a Page 97 of 103 Packet Pg. 306 4.1.c SUPPLEMENTARY CONDITIONS — FEMA AND OTHER FEDERALLY FUNDED PROJECT NOTE: These Supplementary Conditions apply to FEMA and other federally funded Cites projects. The City anticipates that most projects performed thru the Job Order Contracting_ program will not be FEMA funded or otherwise federally funded. The Agreement/Contract (collectively, "Contract") may be funded in whole or in part by federal grant funding received by The City of Edmonds from the Federal Emergency Management Agency ("FEMA"), which is part of the United States Department of Homeland Security ("DHS"), or other Federal Funding sources. Therefore, Consultant/Contractor (collectively, the "Contractor") must comply with all federal laws and regulations applicable to the receipt of FEMA grants, including, but not limited to, the contractual provision set forth in Title 2 of the Code of Federal Regulations, Part 200, in connection with the Contractor's performance of the work or services covered by the Contract (the "Project"). All such federal laws and regulations shall be deemed to be inserted in the Contract and the Contract shall be read and enforced as though such federal laws and regulations were included therein. Anything to the contrary herein notwithstanding, all FEMA-mandated terms shall be deemed to control in the event of a conflict with other provisions contained in the Contract. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any City of Edmonds request that would cause the City to be in violation of these FEMA terms and conditions or any other federal law or regulation applicable to the receipt of FEMA grants. If any provision of the Contract shall be such as to effect noncompliance with any FEMA requirement, such provision shall not be deemed to form a part thereof, but the balance of the Contract shall remain in full force and effect. In addition, the Contractor agrees to the following specific provisions: 1.1 Debarment The Contractor and any prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. .2 The City will ensure the Contractor and any lower participants are not debarred by checking the government's Excluded Parties List System at SAM.gov prior to executing a contract. 1.2 Cost Plus Percentage Not Allowed Notwithstanding any provisions in the Contract to the contrary, the Contractor and any prospective lower tier participant are prohibited from using cost plus percentage contracts. This includes, but is not limited to, the use of percentages for change orders or mark-ups on sub -contractors or materials. Cost plus fixed fee, either lump sum or unit price, is authorized. Page 98 of 103 Packet Pg. 307 4.1.c 1.3Additional Federal Contracting Requirements The Contractor must comply with Executive Order 11246 of September 24, 1965, entitled Equal Employment Opportunity, as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). .2 The Contractor must comply with the requirements of the Age Discrimination Act of 1975 (42 U.S.C. § 6101 et seq.), which prohibits discrimination on the basis of age in any program or activity receiving Federal financial assistance. The Contractor must comply with the requirements of Titles I, 11, and III of the Americans with Disabilities Act, which prohibits recipients of federal funding from discriminating on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12101-12213). 4 The Contractor must comply with the requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), which provides that no person in the United States will, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Implementing regulations for the Act are found at 6 C.F.R. Part 21 and 44 C.F.R. Part 7. .5 The Contractor must comply with Title Vill of the Civil Rights Act of 1968, which prohibits Contractors from discriminating in the sale, rental, financing, and advertising of dwellings, or in the provision of services in connection therewith, on the basis of race, color, national origin, religion, disability, familial status, and sex (42 U.S.C. § 3601 et seq.), as implemented by the Department of Housing and Urban Development at 24 C.F.R. Part 100. The prohibition on disability discrimination includes the requirement that new multifamily housing with four or more dwelling units—i.e., the public and common use areas and individual apartment units (all units in buildings with elevators and ground -floor units in buildings without elevators) —be designed and constructed with certain accessible features (see 24 C.F.R. § 100.201). .6 The Contractor must comply with the Copeland Anti -Kickback Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). 7 The Contractor must comply with the Davis -Bacon Act (40 U.S.C. 276a to 276a7) as supplemented by Department of Labor regulations (29 CFR Part 5). a. This project is a public work in the State of Washington, funded in whole or in part with public funds. Therefore, the higher of the two applicable prevailing wage rates, federal or state, will be enforced. .8 The Contractor must comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327330) as supplemented by Department of Labor regulations (29 CFR Part 5). Page 99 of 103 Packet Pg. 308 4.1.c 9 The Contractor must provide reporting as specified in the plans, specifications and deliverables section of the Contract. 10 The City shall have patent rights with respect to any discovery or invention which arises or is developed in the course of or under such contract. I I The City shall have copyrights and rights respective to any data which arises or is developed in the course of or under such contract. 12 The County, State, the Federal grantor agency, the Comptroller General of the United States, or any of their duly authorized representatives shall have access to any books, documents, papers, and records of the Contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. 13 The Contractor must maintain records for three years after grantees or subgrantees make final payments and all other pending matters are closed. 14 The Contractor must comply with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000) .15 The Contractor must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. 16 The Contractor must comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94163, 89 Stat. 871). .17 The City is entitled to exercise all administrative, contractual, or other legal remedies permitted by law to enforce the Contractor's compliance with the terms of the Contract. .18 The Contractor must acknowledge its use of federal funding when issuing requests for proposals, bid invitations, and other documents describing the Project in connection with performing the Contract. Page 100 of 103 Packet Pg. 309 4.1.c 19 If the Contractor collects PH (Personally Identifiable Information) in connection with the Project, the Contractor is required to have a publicly available privacy policy that describes what PH they collect, how they use the PH, whether they share PH with third parties, and how individuals may have their PH corrected where appropriate. .20 The Contractor must comply with the Drug -Free Workplace Act of 1988 (41 U.S.C. § 701 et seq.), which is adopted at 2 C.F.R Part 3001, which requires that all organizations receiving grants from any Federal agency agree to maintain a drug -free workplace. .21 The Contractor must comply with the requirements of 31 U.S.C. § 3729 which sets forth that no recipient of federal payments shall submit a false claim for payment. See also 38 U.S.C. § 3801-3812 which details the administrative remedies for false i claims and statements made. c 0 U .22 The Contractor must comply with Preference for U.S. Flag Air Carriers: (air carriers holding certificates under 49 U.S.C. § 41 102) for international air transportation of 0` people and property to the extent that such service is available, in accordance with o the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. § 401 18) and the interpretative guidelines issued by the Comptroller General 3 of the United States in the March 31, 1981, amendment to Comptroller General Q Decision B-138942. IA .23 The Contractor must comply with the Title VI of the Civil Rights Act of 1964 (Title VI) prohibition against discrimination on the basis of national origin, which requires that recipients of federal financial assistance take reasonable steps to provide meaningful access to persons with limited English proficiency ("LEP") to their programs and services. Providing meaningful access for persons with LEP may entail providing language assistance services, including oral interpretation and written translation. .24 The Contractor must comply with 31 U.S.C. § 1352, which provides that none of the funds provided under an award may be expended by the Contractor to pay any person to influence, or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal action concerning the award or renewal. .25 Unless otherwise provided by law, the Contractor is subject to the Bayh-Dole Act, Pub. L. No. 96-517, as amended, and codified in 35 U.S.C. § 200 et seq. The Contractor is subject to the specific requirements governing the development, reporting, and disposition of rights to inventions and patents resulting from financial assistance awards are in 37 C.F.R. Part 401 and the standard patent rights clause in 37 C.F.R. § 401.14. .26 The Contractor must comply with U.S. Executive Order 13224 and U.S. law that prohibit transactions with, and the provisions of resources and support to, individuals and organizations associated with terrorism. Page 101 of 103 Packet Pg. 310 4.1.c .27 The Contractor must comply with the requirements of the government -wide award term which implements Section 106(g) of the Trafficking Victims Protection Act (TVPA) of 2000, as amended (22 U.S.C. § 7104). This is implemented in accordance with OMB Interim Final Guidance, Federal Register, Volume 72, No. 218, November 13, 2007. Full text of the award term is located at 2 CFR § 175.15. .28 The Contractor must comply with the Rehabilitation Act of 1973, including all sections, that prohibits discrimination on the basis of disability. The standards for deciding if employment discrimination exists under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act. .29 The Contractor must maintain the currency of the information in the Universal Identifier and System of Award Management (SAM) until submission of the final financial report required under the award or receive final payment, whichever is later, as required by 2 C.F.R. Part 25. 30 The Contractor must comply with requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which amends 18 U.S.C. §§ 175-175c. Among other things, the USA PATRIOT Act prescribes criminal penalties for possession of any biological agent, toxin, or delivery system of a type or in a quantity that is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose. .31 The Contractor must comply with the statutory requirements for whistleblower protections (if applicable) at 10 U.S.0 § 2409, 41 U.S.C. 4712, and 10 U.S.C. § 2324, 41 U.S.C. §§ 4304 and 4310. .32 The Contractor must obtain DHS's approval prior to using the DHS seal(s), logos, crests or reproductions of flags or likenesses of DHS agency officials, including use of the United States Coast Guard seal, logo, crests or reproductions of flags or likenesses of Coast Guard officials. 33 The Contractor must acknowledge and agree —and require any sub -contractors, successors, transferees, and assignees to acknowledge and agree —to comply with applicable provisions governing DHS access to records, accounts, documents, information, facilities, and staff. Additionally: a. the Contractor must cooperate with any compliance review or complaint investigation conducted by DHS; b. the Contractor must give DHS access to and the right to examine and copy records, accounts, and other documents and sources of information related to the grant and permit access to facilities, personnel, and other individuals and information as may be necessary, as required by DHS regulations and other applicable laws or program guidance; C. the Contractor must submit timely, complete, and accurate reports to the appropriate DHS officials and maintain appropriate backup documentation to support the reports; d. the Contractor must comply with all other special reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance; c 0 U L O 0 L 3 g Page 102 of 103 Packet Pg. 311 4.1.c e. if, during the past three years, the Contractor has been accused of discrimination on the grounds of race, color, national origin (including limited English proficiency), sex, age, disability, religion, or familial status, the Contractor must provide a list of all such proceedings, pending or completed, including outcome and copies of settlement agreements to the DHS awarding office (FEMA) and the DHS Office of Civil Rights and Civil Liberties; and f. in the event any court or administrative agency makes a finding of discrimination on grounds of race, color, national origin (including limited English proficiency), sex, age, disability, religion, or familial status against the Contractor, or the Contractor settles a case or matter alleging such discrimination, the Contractor must forward a copy of the complaint and findings to the DHS Component and/or awarding office (FEMA). .34 Small and Minority Businesses: The non -Federal entity must take all necessary affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible. Affirmative steps must include: a. Placing qualified small and minority businesses and women's business enterprises on solicitation lists; b. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; C. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises; d. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; e. Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and f. Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (a) through (e) of this section. http://www.ecfr.gov/cgi- bin/text-idx?node=se2.1.200 1321 &rgn=div8 The United States has the right to seek judicial enforcement of these obligations. Page 103 of 103 Packet Pg. 312 4.1.d v Packet Pg. 313 Background April 6, 2021 - City Council authorized a RFP for JOC consultant • July 6, 2021 - City Council authorized an Agreement with Gordian, Inc to assist City with developing a JOC Program • January 18, 2022 - City Council approved amendment to Purchasing Policy & Procedures for Job Order Contracting • January 25, 2022 - City Council authorized the advertisement of a request for proposals for Job Order Contracting • January 31, 2022 - JOC Request for Proposal advertised • March 7, 2022 - Proposal due date April 8, 2022 - Issued Notice of Intent to Award April 12, 2022 - Presentation to Parks/Public Works Committee. K Proposals Received l'q • 5 Contractors submitted Proposals � • Burton Construction Centennial Contractors Enterprises • Forma Construction • Saybr Contractors • Swinerton -M KI Proposal Evaluation • The City of Edmonds will award a contract to the responsive and responsible Proposer(s) whose offer(s) best meet the needs of the City or, at the City's sole discretion, reject any and all Proposals. • Responsive Proposer - A business entity or individual who has submitted a proposal that fully conforms in all material respects to the Request for Proposals (RFP) and all of its 1 requirements, including all form and substance. • Responsible Proposer - A business entity or individual who has the financial and technical capacity to perform the requirements of the RFP solicitation and subsequent contract. Proposal Evaluation . Minimum Qualifications • Criteria • Qualifications and Relevant Experience • Technical Capacity, Approach and Capacity • Communication and Customer Service • Risk, Performance and Quality Assurance . Price Proposal • Evaluate Adjustment Factors 5 Job Order Process . Projects or maintenance programs in the City"s current budget are eligible for Job Order Contracting. • Job Order Authorization will follow the City"s Purchasing Policies and Procedures. .Job Order Amount • $50k or less -Director approval • $100k or less -Mayor approval J90W • $100k or more -City Council approval 6 Staff Recommendation . Award 3 Job Order Contracts � • Forma Construction Centennial Contractors Enterprises • Saybr Contractors T