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02/24/2009 08 Capitol Theatre Expansion Project General Contractor / Contract Manager AIA Documents
BUSINESS OF THE CITY COUNCIL 410 YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 8 For Meeting of February 24, 2009 ITEM TITLE: Consideration of a Resolution authorizing execution of AIA Documents for General Contractor / Contract Manager (GC /CM) services for the Capitol Theatre Expansion Project and any other such documents that may be deemed necessary and prudent for the completion of this project. SUBMITTED BY: William Cook, Director of Community & Economic Development CONTACT PERSON/TELEPHONE: Doug Mayo, P.E., City Engineer 576 -6678 SUMMARY EXPLANATION: The Capitol Theatre Committee presented a multi -phase expansion plan to City Council at a study session on March 25, 2008. On July 1, 2008, City Council approved TRAHO Architects to proceed with architectural design services for improvements to the Capitol Theatre per Resolution No. R- 2008 -102 and authorized an Interfund Loan from the 198 - Capitol Theatre Reserve Fund to the 322 - Capitol Theatre Construction Fund in an amount not to exceed $500,000, and set the terms of repayment per Resolution No. R- 2008 -104. On October 21, 2008 City Council approved 4110 Olympic Associates to provide GC /CM and construction management services for the project per Resolution No. R- 2008 -148. In early December the City obtained approval from the State of Washington Project Review Committee (PRC) to use the GC /CM form of construction for this project. GC/CM responsibilities will include, but not be limited to, the following: • Provide pre - construction cost estimating, scheduling, assistance in material selection and building systems; • Solicit and manage subcontractor and supplier bidding; • Provide high quality construction services completing the project on time and within the contract price. continued Resolution X Ordinance Contract X Other (Specify) ( AIA Documents: Al21 & A201 ) Funding Source: Capitol Theatre Construction Fund 322 APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt the resolution BOARD /COMMISSION RECOMMENDATION: COUNCIL ACTION: (continued) After soliciting and receiving Statements of Qualifications (SOQ's) from 13 qualified contractors, a committee reviewed and scored the SOQ's to narrow the list of potential contractors to three finalists. On February 4' a team of nine, including Councilwoman Coffey, interviewed the three finalists: Howard S. Wright; Leone, Keeble & Moen, (a Joint Venture); and Lydig Construction. The winning contractor was selected by comparing the SOQ scores, interview scores and fee proposals. Leone, Keeble & Moen, (a Joint Venture) was the selected firm to perform this GC /CM project and a contract will be executed ASAP between them and the City. Initial meetings have taken place to work on the design/construction schedule and get the award process started. PROJECT BACKGROUND: To date, the Capitol Theatre Committee (CTC) has secured in excess of $9 million dollars through a combination of local fundraising and changes in state legislation that increases the authorities of the Public Facilities District (PFD). The Capitol Theatre project is divided into three separate and stand -alone phases: PHASE I — Capitol Theatre - Production Center s The Production Center (attached to the back of the Capitol Theatre facility) will not only facilitate the unloading and loading of semi - trucks delivering; show equipment, this project will upgrade electronics required for computerized lighting, staging and sound; address the need for prop and equipment storage; and parking facilities for production trucks. This facility is insufficient to host most of the larger performances that are affordable but cannot fit in the facility. The Production Center construction will also include a base layout including all lighting and equipment for a future 200 to 400 -seat flexible "Black. Box" theatre on the second floor. PHASE 11 — Capitol Theatre - Pavilion The Pavilion is a two -story annex on the southeast corner of Yakima Avenue an d 3rd Street. With the working title of "Pavilion", this structure is designed to serve as a beacon to the center of downtown, providing both public and private meeting and gathering spaces, including a CT lobby annex, food & beverage service, box office, jazz club with administrative offices on the 2nd floor. PHASE 111— Pedestrian Plaza $4,000,000 for a pedestrian plaza and lobby extension by closing 3rd Street to vehicular traffic between Yakima and Chestnut Avenues. The concept of the plaza is an integral component to defining a destination draw that will enhance the community that is becoming Yakima's downtown core. Phases I & 11 are estimated at $10,213,750 for the two support facilities and utility relocation. These projects are 86% funded through a combination of PFD revenues and bonding ($7.4 million) and private contributions ($1:4 million) with the remaining $1.4 million committed to be raised by the CTC (through a combination of grants, private fundraising and soliciting the State of Washington.) The Capitol Theatre efforts, to -date, have raised over $9.3 million along with a commitment to secure the remaining $1.4 million to complete Phase II. An initial $500,000 of private donations was secured by the CTC for planning, fund raising and utility relocation in the block behind the Capitol Theatre. The utility relocation work will accommodate the new Production Center and is near completion. RESOLUTION NO. R -2009- A RESOLUTION A Resolution authorizing the City Manager to execute AIA Documents for General Contractor / Contract Manager (GC /CM) services for the Capitol Theatre Expansion Project and any other such documents that may be deemed necessary and prudent for the completion of this project. WHEREAS, the Capitol Theatre Committee (CTC) has secured in excess of $9 million dollars through a combination of local fundraising and changes in State legislation that increases the authorities of the Public Facilities District (PFD) to design and construct improvements to The Capitol Theatre; and WHEREAS, the design and construction of the public improvements has been approved for the General Contractor / Contract Manager method of construction services by the Sate of Washington; and WHEREAS, the city solicited Statement of Qualifications of qualified GC /CM contractors that have the expertise necessary to perform the services required by the City; and, WHEREAS, the interview team has diligently scored and selected a qualified contractor to perform GC /CM services for the Capitol Theatre Expansion Project; and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into an AIA Standard Form of Agreement Between Owner and Construction Manager with a GC /CM contractor competitively selected from'qualified contractors with such expertise; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk of the City of Yakima are authorized and directed to execute AIA Documents for General Contractor / Contract Manager (GC /CM) services for the Capitol Theatre Expansion Project, a copy of which agreement is attached hereto and by reference made a part hereof, and any other such documents that may be deemed necessary and prudent for the completion of the project. ADOPTED BY THE CITY COUNCIL this 24 day of February, 2009 David Edler, Mayor ATTEST: City Clerk • ill ' .„...... . I& ALk Document A1 TM CMc - 2003 and AGC Document 565 Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is Also the Constructor . AGREEMENT made as of the day of in the year of 2009 (In words, indicate day, month and year) This document has important legal consequences. • BETWEEN the Owner: Consultation with an attomey (Name and address) . - is encouraged with respect to its completion or modification. City of Yakima 129 N. 2nd St. _ The 1997 Edition of AIA Yakima, Washington 98901 Document A201, General Conditions of the Contract for Construction, is referred to and the Construction. Manager: herein. This Agreement requires (Name and address) modification if other general.. , conditions are utilized. ' • The Project is: (Name, address and brief description) Capitol Theater Project Yakima, Washington The Architect is: • (Name and address) - - The Program Manager is: Olympic Associates . 701 Dexter Avenue North, Suite 301, Seattle, WA 98109 The Owner and Construction Manager agree as set forth below: 40 AIA Document Al21 TM CMC• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 1. reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 212/2009 under Order No. 1000354960_1 which expires on 51512009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) s • • TABLE OF CONTENTS S ARTICLE 1 GENERAL PROVISIONS § 1.1 Relationship of the Parties § 1.2 General Conditions • ARTICLE 2 CONSTRUCTION MANAGERS RESPONSIBILITIES § 2.1 Preconstruction Phase § 2.2 Guaranteed Maximum Price Proposal and Contract Time § 2.3 Construction Phase § 2.4 Professional Services § 2.5 Hazardous Materials ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 Information and Services § 3.2 Owner's Designated Representative § 3.3 Architect § 3.4 Legal Requirements ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 4.2 Payments ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES § 5.1 Compensation § 5.2 Guaranteed Maximum Price § 5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 Costs to Be Reimbursed . § 6.2 Costs Not to Be Reimbursed § 6.3 Discounts, Rebates and Refunds § 6.4 Accounting Records ARTICLE 7 CONSTRUCTION PHASE § 7.1 Progress Payments • § 7.2 Final Payment • ARTICLE 8 INSURANCE AND BONDS § 8.1 Insurance Required of the Construction Manager § 8.2 Insurance Required of the Owner § 8.3 Performance Bond and Payment Bond ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 Dispute Resolution § 9.2 Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION • § 10.1 Termination Prior to Establishing Guaranteed Maximum Price § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price § 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES AIA Document Al21 TM CMc• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 2 III reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • , . , . ARTICLE 1 GENERAL PROVISIONS . § 1.0 DEFINITIONS § 1.0.1 The Agreement is this revised Al21 /CMc Agreement between Owner and Construction Manager. § 1.0.2 An Application for Payment is described in Paragraph 9.3 of the revised General Conditions and Paragraph 7.1 of this Agreement and is generally a document the Construction Manager submits to the Owner itemizing amounts due and operations completed in accordance with the Contract for Construction. • § 1.0.3 The Architect, listed above, is the entity with whom the Owner has contracted in a separate Owner- Architect agreement, and is described in Paragraph 3.3 of this Agreement and defined in Subparagraph 4.1.1 of the revised General Conditions. . § 1.0.4 A Change Order is defined in Subparagraph 7.2.1 of the revised General Conditions and is generally a written instrument prepared by the Architect and signed by Owner, the Program Manager, the Construction ' Manager and the Architect that modifies the Contract for Construction and states their agreement upon a • Change in the Work, the amount of the adjustment, if any, in the GMP: and the extent of the adjustment, if any, in the Contract Time. § 1.0.5 A Claim is defined in Subparagraph 4.3.1 of the revised General Conditions and generally consists of a demand or assertion by one of the parties seeking, as a matter of right, adjustments or interpretations of Contract terms, payment of money, extension of time or other relief. The term "Claim" includes disputes and matters in question between the Owner and the Construction Manager arising out of or relating to the Contract. § 1.0.6. A Component of the Work is a portion of the Work designated in the Contract Documents for which a separate GMP and Component Time is negotiated. § 1.0.7 The Component Time is the time specified in an Amendment to achieve Substantial Completion of a • Component of the Work. The Component Time is a part of the Contract Time. . 0 § 1.0.8 A Construction Change Directive is defined in Paragraph 7.3 of the revised General Conditions as a written order prepared by the Architect or the Program Manager and signed by the Owner, with or without the agreement of the Construction Manager, directing the Construction Manager to perform a change in the Work, or perform Work the Construction Manager contends to be a change in the Work, prior to agreement of the basis for adjustment, if any, to the Contract for Construction. §. 1.0.9 The Construction Manager is the entity identified above as the party to this Agreement responsible for performing the Preconstruction Services and construction of the Project through its own services as well as through Subcontractors. § 1.0.10 The Construction Phase is defined in Paragraph 2.3 of this Agreement and'generally consists of the period of the Contract during which the Construction Manager performs construction of the Project after the initial Amendment is executed and the Owner has issued a Notice to Proceed. § 1.0.11 The Construction Schedule is the schedule defined in Paragraph 3.10 of the revised General Conditions and prepared and revised by the Construction Manager for its performance under the Contract for Construction. § 1.0.12 The Contract Documents are defined in Subparagraph 1.1.1 of the revised General Conditions, and • generally consist of this revised Al21 /CMc Agreement between Owner and the Construction Manager and its . attachments and exhibits, the revised A201 General Conditions and other conditions of the Contract, Drawings, . Specifications, Addenda, other documents listed in this Agreement and modifications and Amendments issued after execution of the Contract. § 1.0.13 The Contract for Construction (sometimes referred to as the Contract) is the agreement between the Owner and the Construction Manager and is formed by the Contract Documents. § 1.0.14 The Contract Sum is the amount specified in Subparagraph 5.1.1 of this Agreement and Subparagraph 9.1.1 of the revised General Conditions that the Owner agrees to pay the Construction Manager for its performance of the Work under the Contract for Construction. The Contract Sum consists of the Cost of the AIA Document Al21" CMc- 2003 and AGC Document 565. Copyright 01991 and 2003 by The American Institute of Architects and The Associated General • /nit Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 3 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the i maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which • expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439 3.DOC (3144662520) Work (including the Specified General Conditions and Negotiated Support Services) as well as the Construction Manager's Fee, and it may not exceed the GMP. Sales tax is not included in the Contract Sum. § 1.0.15 The Contract Time is the time defined in Subparagraph 8.1.1 of the revised General Conditions and specified in an Amendment to achieve Substantial Completion of the final Component of all the Work. § 1.0.16 The term Contractor means the Construction Manager. § 1.0.17 The Cost of the Work is the amount defined in Article 6 of this Agreement reasonably and necessarily incurred.by the Construction Manager in the proper performance of the Work under the Contract for Construction. It includes the Specified General Conditions and Negotiated Support Services but does not include the Construction Manager's Fee or sales tax. § 1.0.18 Drawings are defined in Subparagraph 1.1.5 of the revised General Conditions and generally are the graphic and pictorial portions of the Contract Documents showing the design and location of the Work, and generally include plans, elevations, sections, details, schedules and diagrams. § 1.0.19 The Construction Manager's Fee is the amount specified in an Amendment based on the percentage contained in Subparagraph 5.1.1 of this Agreement that the Construction Manager is to receive under this Contract in addition to the Cost of the Work for its performance of the Work. The Fee compensates the Construction Manager for its profit and all overhead expenses not otherwise reimbursable under this Agreement, including home office overhead and all taxes except sales tax. The Fee is applied to the Negotiated Support Services but is not applied to the Specified General Conditions. § 1.0.20 Final Completion is defined in Subparagraph 9.10 of the revised General Conditions and generally occurs when the Owner finds that the Work has been concluded, an occupancy permit has been issued, the commissioning process and any validation process have been successfully concluded, incidental corrective or punch list work and final cleaning have been completed, the Construction Manager has submitted all specified items; the Construction Manager has submitted a final Application for Payment, and the Owner has approved a. final Application for Payment. § 1.0.21 The General Conditions of the Contract are the revised 1997 Edition of AIA Document A201, General Conditions of the Contract for Construction, which is incorporated herein by reference. All references to the A201 General Conditions in the Contract Documents are to the revised document. § 1.0.22 The Guaranteed Maximum Price ( "GMP ") for a Component of the Work is defined in Subparagraph 2.2.1, described in Subparagraph 5.2 of this Agreement, and established in an Amendment for that Component. The GMP for a Component consists of the negotiated MACC (including the Negotiated Support Services); the Specified General Conditions and the Construction Manager's Fee. The GMP does not include sales tax or Preconstruction Services. The Owner is not obligated to pay the Construction Manager more than the GMP for the performance of a Component of the Work. § 1.0.23 The Maximum Allowable Construction Cost ( "MACC ") generally consists of the sum the Owner establishes (in writing) in conjunction with the Program Manager, the Architect, its consultants and the Construction Manager as the fixed limit for the Cost of the Work. It consists of an estimate of the Cost of the Work reimbursable under Article 6 of this Agreement (including Negotiated Support Services); it does not include the Specified General Conditions and the Construction Manager's Fee, Preconstruction Services, or sales tax. The Owner has established a preliminary MACC- for the Project as of the date hereof, and a final MACC will be established as part of the GMP negotiation in accordance with this Agreement. § 1.0.24 Negotiated Support Services are defined in Subparagraph 6.1.9 and generally are items the Construction Manager normally would manage or perform on the Work, including but not limited to, surveying, hoisting, temporary toilets, temporary heat, cleanup and trash removal. Approved Negotiated Support Services are reimbursable, consistent with the Contract Documents, to the extent they are Costs of the Work within the GMP. § 1.0.25 The Notice to Proceed is described in Subparagraph 2.3.1 of this Agreement and is generally a written notice the Owner submits to the Construction Manager that institutes the Construction Phase for a Component AIA Document Al21 T CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 4 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • _ . _ . . il, construction to commence upon the Construction Manager's Compliance with conditions er's corn and generally permits constru p g p expressed in the notice. The Owner will issue a Notice to Proceed for a Component within fourteen (14) days of the date the Parties execute the Amendment for the Component. The Owner will not issue a Notice to Proceed until it has acquired all permits required for commencement of the Work at the site: unfettered physical and legal access to the site is available: and the Owner has provided certificates of insurance for all insurance • the Owner is to provide. • • § 1.0.26 The Owner is listed above. • § 1.0.27 The Owner - Architect Agreement is the separate agreement between the Owner and the Architect relating to the design of the Project. . § 1.0.28 The Preconstruction Phase is defined in Paragraph 2.1 and generally consists of the initial portion of the Construction Manager's performance under the Contract for a Component prior to execution of an Amendment establishing the GMP for the Component and• issuance of the Notice to Proceed for that • Component. § 1.0.29 The Preconstruction Services generally consist of those services provided by the Construction Manager under Paragraphs 2.1 and 2.2 of this Agreement. _ § 1.0.30 The Program Manager, identified above, is a representative but not agent of the Owner. Its duties ' and responsibilities are specified in the Contract Documents. The Program Manager itself is not empowered to , waive any terms or conditions of the Contract Documents or to commit the Owner to additional costs or time. § 1.0.31 The Project is defined on the cover page above and in Subparagraph 1 .1.4 of the revised General . Conditions. - • § 1.0.32 The Project Team consists of the Construction Manager, the Owner, its Program Manager, and the ilk Architect, and all consultants and Subcontractors of any tier employed or retained by each of them. § 1.0.33 Specifications are defined m Subparagraph 1 :1.6 of the revised General Conditions and generally - consist of the portion of the Contract Documents consisting of the written requirements for materials, _ . equipment, systems, standards and workmanship for the Work, and performance of related services. . § 1.0.34 Specified General Conditions are defined in Subparagraph 6.1.11 and generally mean certain selected general conditions work and services specified in the Contract Documents to be provided by the Construction Manager for the fixed Specified General Conditions price as a part of the Cost of the Work. The Specified _ General Conditions are to be performed by the Construction Manager with its own forces in most instances. The Specified General Conditions include the Preconstruction Services on a Component that occur after the GMP is established for the Component through execution of the Amendment for that Component. The Specified General Conditions include but are not limited to all costs associated with the Subcontractor bidding process, such as developing solicitations, site tours, responding to questions from bidders, providing a bid • opening facility, bidding iri accordance with the requirements of the Contract Documents and subcontract award. Reproduction of bid sets as required for bidding are not included in the Specified General Conditions. , • The Specified General Conditions are allocable to each Component of the Work on a mutually agreed basis. § 1.0.35 The Subcontracting Plan is defined in Subparagraph 2.1.6.1 and is prepared by the Construction • . Manager for the Owner's approval prior to conclusion of the Design Development phase. It identifies all bid packages, scopes of work, timing of solicitation of bids for the packages to meet the Construction Schedule, major coordination issues with other packages, and means to enhance the opportunity for local businesses to participate in performing-the Work. . • • § 1.0.36 A Subcontractor is defined in Paragraph 5.1 of the revised General Conditions and is generally a person or entity that has a direct contract with the Construction Manager. A Subcontractor of any tier is a Subcontractor or a lower tier subcontractor that perform a portion of the Work of the Project at the site or supply materials or equipment. . § 1.0.37 Substantial Completion is defined in Subparagraph 9.8.1 of the General Conditions. The date of Substantial Completion for a Component is established in an Amendment and generally is the stage in the a 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 5 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 1 maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 21212009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. - User Notes: Yakima 15169439_3.DOC (3144662520) progress of the Component of the Work (or other ortion thereof designated and approved by the Architect and • P � PP Y the Owner) when the construction is sufficiently complete, in accordance with the Contract Documents, so the Owner can fully occupy or utilize the Component (or portion thereof designated by the Owner) for its intended use, subject to commissioning, in accordance with Paragraph 9.8 of the revised General Conditions. It is" anticipated that there will be separate Dates of Substantial Completion specified for at least two Components of the Work. § 1.0.38 The Work is defined in Subparagraph 1.1.3 of the revised General Conditions and generally means the construction and services performed in the Construction Phase as required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Construction Manager to fulfill its obligations. § 1.1 RELATIONSHIP OF PARTIES The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. The Construction Manager shall furnish professional, competent construction administration and management services, including provision of sufficient quantities of fully qualified, competent and experienced personnel capable of performing the services set forth in this Agreement, and shall use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the Owner. The Owner-parties shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager and other persons or entities employed by'"rthem for the Project to the fullest extent possible in order to further the interests of the Owner in the Project and to effect prompt completion of the Project within the requirements of the Contract Time and the GMP. § 1.1.2 The Construction Manager shall perform the Preconstruction Services, shall be responsible for coordinating the activities of construction during the Construction Phase, shall be fully responsible for discharging all of the Construction Manager's obligations under the Contract Documents, and, during the Preconstruction and Construction Phases, shall advise and work with the Project Team to make - recommendations the Construction Manager considers appropriate for altemate or substitute technologies, construction techniques, methods and practices based on maintainability and durability as well as cost savings. time saving and/or other related efficiencies. The Program Manager will be responsible for coordinating the activities of the Project Team during the Preconstruction Phase. • § 1.2 GENERAL CONDITIONS For the Construction Phase, the General Conditions of the contract shall be the AIA® Document A201T"_1997, 1 General Conditions of the Contract for Construction, as revised, which is incorporated herein by reference. For the Preconstruction Phase, or in the' event that the Preconstruction and Construction Phases proceed concurrently, A201T"_1997 shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term "Contractor" as used in A201T"_1997 shall mean the Construction Manager. • • ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article. The services to be provided under Sections 2.1 and 2.2 constitute the Preconstruction Phase services. - - - . . . - • - - - , The Construction Phase for a particular Component may commence before the Preconstruction Phase for another Component is completed, in which case both phases will proceed concurrently. § 2.1 PRECONSTRUCTION PHASE § 2.1.1 PRELIMINARY EVALUATION The Construction Manager shall participate as a part of the Project team to provide a preliminary evaluation of the Owner's program and Project budget requirements, each in terms of the other. The effort will be accomplished concurrently with the Schematic Design estimate produced by the Construction Manager. AIA Document Al21 "' CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General !nit Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 6 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 Under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) S § 2.1.2 CONSULTATION The Construction Manager with the Architect and the Program Manager shall jointly schedule and shall attend regular meetings with the Owner. The Construction Manager shall actively and collaboratively consult with the . Owner and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager shall conform to Attachments 1, 2 and 3, and provide recommendations on construction feasibility; value engineering and constructability; actions designed to minimize adverse effects of labor, material price escalation, or material shortages; time requirements; phasing and site work planning; • sequencing and scheduling for procurement, installation and construction completion; traffic planning; factors related to construction quality, maintainability and durability; life cycle cost design considerations, and factors • . related to construction cost, including estimates of alternative designs or materials, preliminary budgets and possible economies. § 2.1.3 PRELIMINARY PROJECT SCHEDULE . The Program Manager, in conjunction with the Architect, has developed a Master Implementation Schedule for pre- design, design and construction activities. The Program Manager will facilitate the Architect's design performance. When Project requirements described in Section 3.1.1 have been sufficiently identified, and within thirty (30) days of the completion of the Architect's Schematic Design Phase, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval showing a construction plan integrated with the Master Implementation Schedule. The Construction Manager shall obtain the Architect's approval of the portion of the preliminary Project schedule relating to the • performance of the Architect's services. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Architect and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed - Maximum Price proposal for each Component no later than thirty (30) days after the Construction Manager's receipt of what the Owner designates as the "GMP set" of Contract Documents for each Component, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long - lead -time procurement, Owner's occupancy and phasing_requirements showing portions of the Project having occupancy priority, and prepesed•confirmation of the Owner's required date of Substantial Completion for each Component. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall promptly make appropriate recommendations in writing to the Owner and • - Architect. The Construction Manager will be responsible for the Construction•Schedule; including a plan for • phased construction defined in the Contract Documents. § 2.1.4 PHASED CONSTRUCTION - • • - The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as occupancy needs, economies, time of performance, availability of labor and materials, and provisions for temporary facilities. The parties contemplate that there will be at least two Components, each with its own Component Time as well as • GMP and attendant negotiation process. - - - § 2.1.5 PRELIMINARY COST ESTIMATES , . . • _ ... _ § 2.1.5.2 The Construction Manager will collaborate with the Architect and the Owner on cost estimates • throughout the Preconstruction Phase. When Schematic Design Documents have been prepared by the Architect and approved by the Owner, the. Construction Manager shall, within twenty-one L21) days of receipt, prepare, for the review of the Architect and approval of the Owner, a more detailed estimate with supporting data in a format to which the Construction Manager, Architect and Owner agree. The Construction Manager will reconcile its estimate with the Owner and the Architect. During the preparation of the Design Development Documents; the Construction Manager will continue its collaboration and shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager. AIA Document Al21 n CMc• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 7 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the i . maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/512009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • § 2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall, within twenty -one (21) days of receipt, prepare a-detailed estimates for each Component with supporting data for review by the Architect and the Program Manager and approval by the Owner. These cost estimates shall be performed in accordance with the schedule, projected to the expected time of bidding, itemized by detailed categories, and reconciled with any cost estimates of the Architect and Owner. During the preparation of the Construction Documents, the Construction Manager shall update and refine this estimate in comparison to prior estimates and shall also update and refine this estimate in the event of changes in the scope of the Work•at appropriate intervals agreed to by the Owner, Program Manger,•Architect and Construction Manager. . § 2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's buflgetMACC for a Component, the Construction Manager shall make appropriate recommendations to the Owner, Program Manager and Architect, including participation in preparing a list of proposed cost savings equal to or greater than the overage, and the Architect will, if requested by the Owner, modify the design to meet the MACC. § 2.1.6 SUBCONTRACTORS AND SUPPLIERS • • • 2.1.6.1 The Construction Mana . er shall a re , are and submit a Subcontractin • Plan to the Owner for a. *royal prior to conclusion of the Design Development phase. The Subcontracting Plan shall identify all bid packages, • scopes of work, timing of solicitation of bids for the packages to meet the Construction Schedule, major coordination issues with other packages, and means to enhance the opportunity for local businesses to participate in performing the work (e.g., through development of multiple work packages). 4 2.1.6.2 The Construction Manager shall seek to develop subcontractor interestin the Project. The Construction Manager shall consider prebid determination of Subcontractor eligibility to the extent permitted by statute and • shall furnish to the Owner and Architect for their information a list of possible eligible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be el 1 requested for each principal portion of the Work. The Architect Owner will promptly reply in writing to the Construction Manager if the Architect or Owner know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner, Program Manager or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it or the lack of any objection waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier... § 2.1.7 LONG - LEAD - TIME ITEMS § 2.1.7.1 The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long - lead -time items which will constitute part of the Work as required to meet the Project schedule. The Owner shall determine whether and when such long- lead -time items will be procured. If such long- lead -time - items are procured by the Owner, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal for a Component, all contracts for such items applicable to that Component shall be assigned by the Owner to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long- lead -time items. § 2.1.7.2 The Construction Manager shall update the schedule of all long- lead -time items at least monthly. The Construction Manager shall promptly notify the Owner of any anticipated delay with respect to long -lead time • items. • 2.1.7.3 The Construction Mana. er shall identi and estimate the value of an items that require off -site storage, together with proposed locations for storage during the course of the Work acceptable to Owner. These locations shall be selected to provide a maximum of protection and minimum of cost and delay associated with delivery to the site. AIA Document Al21 ° CMG 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General /nit. Contractors of America: All rights reserved. WARNING: This document is protected by U.S: Copyright Law and International Treaties. Unauthorized 8 10 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439 3.D0C (3144662520) • 2.1.7.4 if authorized b the Owner an A lication for Pa men ma include a re uest for a ment for materi al delivered to the Project site and suitably stored, for completed preparatory Work and, provided the Construction Manager complies with or furnishes satisfactory evidence of the following, for material stored off the Project site: • .1 The material will be placed in a bonded warehouse that is structurally sound, dry, lighted, secure and • suitable for the materials to be stored. , .2 The warehouse is approved in writing by the Owner. The Owner generally will not approve locations • beyond a 10 -mile radius of the Project absent special circumstances. .3 Only materials for the Project are stored within the warehouse (or a secure portion of a warehouse set • aside for the Project). .4 The Construction Manager furnishes the Owner a certificate of insurance extending the Construction Manager's insurance coverage for damage, fire and theft to cover the full value of all materials stored, or in transit. .5 The warehouse (or secure portion thereof) is continuously under lock and key, and only the Construction Manager's authorized personnel shall have access. .6 The Owner shall at all times have the right of access to stored materials in the possession of the Construction Manager. .7 The Construction Manager assumes total responsibility for the stored materials. .8 The Construction Manager furnishes to the Owner proofs of title, satisfactory evidence that the Construction Manager has paid for the materials in question, certified lists of materials stored, bills of lading, • invoices and other information as may be required, and shall also furnish notice to the Owner when materials are moved from storage to the Project site. § 2.1.8 EXTENT OF RESPONSIBILITY .1 The Construction.Manager does not warrant or guarantee estimates and schedules except as may be included - as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager • concerning design alternatives shall be subject to the review and approval of the Owner and the Owner's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings,and • 1 Specifications prepared by the Architect are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and Owner in writing. .2 The Construction Manager shall review upon receipt the Drawings and Specifications submitted to it. The • - Construction Manager shall promptly report to the Program Manager and the Architect any error, inconsistency or omission that the Construction Manager may discover in them and shall recommend changes and alternatives. The Construction Manager's review shall be made in the Construction Manager's capacity as a - contractor and not as a licensed design professional. The Construction Manager is not required to ascertain that . the Drawings and Specifications are in accordance with the applicable laws, statutes, ordinances, building codes, and rules and regulations, but any non - conformance discovered by the Construction Manager shall be reported promptly to the Owner and Architect. § 2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs: . • § 2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME • § 2.2.1 When the Drawings and Specifications for a Component are suffsiently at least 90% complete, the • Owner will submit the "GMP set" of Contract Documents for that Component, and, within thirty (30) days of receipt, the Construction Manager shall propose a Guaranteed Maximum Price ( "GMP ") for that Component, which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee for that Component. The Construction Manager shall promptly notify the Owner if it does not consider the Drawings to - be at least 90% complete and shall not propose a GMP until the Drawings are at least 90% complete. • AIA Document Al21N CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American institute of Architects and The Associated General Init. Contractors of America. M rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 9 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 1 maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 212/2009 under Order No. 1000354960_1 which expires on 51512009, and is not for resale. . User Notes: Yakima 15169439_3.DOC (3144662520) § 2.2.2 As the Drawings and.Specifications may not be finished at the time the Guaranteed Maximum Price proposal is prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom as well as market conditions at the time of bidding and possible estimating inaccuracies. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order. § 2.2.3 The estimated Cost of the Work shall include the Construction Manager's contingency, a sum established 1 by the Construction Manager not to exceed 5% of the final MACC, for the Construction Manager's exclusive use to cover costs arising under Section 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order. The Construction Manager's Contingency is assigned for use by the Construction Manager to pay for project issues that are within its control, such as design issues that a reasonable construction manager should have resolved during the pre - construction services phase, items in drawings but not in the specifications, items on one drawing but not another, items specified but not drawn, non - specified . items within specifications, buy -out errors, scope gaps, ambiguities in the construction documents, 'damaged work, unanticipated general conditions expenses, interdisciplinary design coordination, Subcontractor performance, and expediting costs for critical materials. It may also be used for issues beyond the Construction • Manager's control such as lost time, increases in bid contracts, subcontractor failure, and expediting costs for critical materials. The Construction Manager must give the Owner notice when applying to use the Construction Manager's Contingency. This contingency is not available for Owner directed design or scope changes, unforeseen or differing site conditions, and design errors or omissions beyond the reasonable inferences described in Section 2.2.2. . The Construction Manager shall use the contingency only with the Owner's prior written consent, which shall not unreasonably be withheld § 2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The Construction Manager shall include with the Guaranteed Maximum Price proposal for each Component a written statement of its basis, which shall include: .1 A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. .2 A limited list of allowances pre- approved by the Owner and a statement of their basis. .3 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the _ Drawings and Specifications. .4 The proposed Guaranteed Maximum Price, divided into the proposed subcontract bid packages and including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price. ' .5 The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. .6 A proposed labor burden rate reimbursable to the Construction Manager under Article 6 of this Agreement. - .7 Negotiated Support Services. § 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. § 2.2.6 Unless the Owner accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed 1 Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. The AIA Document Al21"' CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General /nit Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 1 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 21212009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) , , _ . • ' s date specified in the proposal for acceptance by the Owner shall be at least thirty (30) days after the Owner receipt of the proposal. § 2.2.7 Prior to the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in writing. § 2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No 1 for the first Component and in subsequent Amendments of consistent form for other Components. The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as provided in the Contract Documents,. and the Date of • • Substantial Completion shall be subject to adjustment as provided in the Contract Documents. . § 2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the 1 extent necessary to reflect the agreed -upon assumptions and clarifications contained in an Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with • schedules agreed to by the Owner,. Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner in writing if such revised Drawings and Specifications are inconsistent with the agreed -upon assumptions and clarifications. If the Construction Manager does not provide this notification within 30 days of its receipt of the revised Drawings and Specifications, the revisions shall be considered accepted. . • . § 2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established, but the GMP does not include sales tax. • 2.2.11 The Owner ma in its discretion terminate the A. reement or a I ortion of the Work at an time durin: ill or after the Preconstruction Phase pursuant to Paragraph 10.1. ,. • • 2.2.12 •If i i in . the for the final Com I onent the sum of the initial MPs for all the Work u on establ sh GMP fo GMPs more than 15% from the budget specified in the REP due to changes in the scope requested and approved - by the Owner, the percentage applied to the GMP to determine the Fee shall be renegotiated when the GMP is negotiated. § 2.3 CONSTRUCTION PHASE § 2.3.1 GENERAL • § 2.3.1.1 The Construction'Phase shall commence on the earlier of: (1) the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal by executing the initial Amendment and the Owner's issuance of a Notice to Proceed -ef (a) award a subcontract, or . $ 2.3.1.2 Although it will not cause the Construction Phase to commence, the Owner may at any time approve the Construction Manager's (a) award of a subcontract, (b) undertaking construction Work with its own forces, or (c) issuance of a purchase order for materials or equipment required for the Work. Any work so approved . and undertaken shall comply with and be subject to the revised A201 General Conditions. § 2.3.2 ADMINISTRATION . § 2.3.2.1 The Construction Manager shall comply with the requirements of RCW 39.10, the provisions of which shall takeprecedence over any inconsistent provisions of the Contract Documents. The Construction Manager - may utilize funds within the GMP for time and cost overruns, occasioned by a Subcontractor's inability or failure to perform. "- : - . - - • - _ . - _ - .: • _ - . .. _ -- 4) AIA Document Al21 TM CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and Intonational Treaties: Unauthorized 11 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 1 maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 212/2009 under Order No. 1000354960_1 which • expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439 3.DOC (3144662520) • reviewed -and .1 Other than Work under the Specified General Conditions and Negotiated Support Services, all Work on the Project shall be competitively bid as required by RCW 39.10. The Construction Manager may organize and solicit bids for the subcontract work in whatever combinations or packages it chooses, but the Construction Manager may not use alternates without approval of the Owner. .2 The Construction Manager shall bid out the subcontract bid packages in accordance with its approved Subcontracting Plan. The Construction Manager shall document and report monthly to the Owner on its procurement process. The Owner's written approval is required for changes to the Subcontracting Plan. • . 3 Before initially soliciting bids for the first subcontract bid package for a Component, the Construction Manager shall submit, and the Owner shall approve, final bid package estimates for all subcontract bid packages in the approved Subcontracting Plan for that Component. The sum of all the final bid package estimates in the Subcontracting Plan plus the Negotiated Support Services and the contingency shall not exceed the MACC. The Owner will not unreasonably withhold approval provided the sum of all the final bid package estimates in the Subcontracting Plan as revised does not exceed the negotiated MACC. . 4 When in the best interests of the Project and critical to the successful completion of a Subcontractor bid package, the Owner and Construction Manager may make a prebid determination of Subcontractor eligibility in accordance with RCW 39.10. .5 As part of its Subcontracting Plan, the Construction Manager shall promptly notify the Owner of Work (other than Negotiated Support Services) that it will seek to self - perform. The Construction Manager, or its subsidiaries, may bid on a subcontract bid package if the Work within the subcontract bid package is :: customarily performed by the Construction Manager, if it has aggressively sought competition, if the bid • opening is managed by the Owner, and if notification of the Construction Manager's intention' to bid is included in the public solicitation of bids for the bid package, and the Construction Manager otherwise complies with- RCW 39.10. In no event may the total value of subcontract work performed by the Construction Manager exceed thirty percent of the MACC negotiated as part of Amendment No. 1 (if there is only one Component) or the sum of the MACCs negotiated as part of all Amendments (if there is more than one Component). The Construction Manager must provide staff to superintend and manage self - performed work with individuals separate and distinct from the staff involved in the overall management of this Contract. The Construction Manager shall coordinate self - performed work with the Work of Subcontractors. • .6 The Construction Manager shall require a bid bond from Subcontractors bidding work expected to cost more than $300,000, and all Subcontractors awarded a. contract in excess of $300,000 shall provide a performance and payment bond for the contract amount. . .7 The Construction Manager's solicitations of subcontract bid packages shall be made in accordance with the followingprocedures: • A representative from the Owner will be present at each bid opening to observe the procedure. • Solicitations for bids will be advertised at least twenty -one (21) days in advance in the Daily Journal of Commerce and at least one other local newspaper. , . • Bidders may obtain the bid results by telephone from the Construction Manager. • Responsiveness requirements and bidding procedures will be described in each solicitation and may be reviewed with the Owner prior to a bid opening. .8 The Construction Manager, after analyzing such-Subcontractor bids, shall deliver such bids to the Owner and Architect. The Owner will then determine, with the advice of the Construction Manager-and-subject - • - : - . • - - - - , . - • - - , which bids will be accepted. Subcontract bid packages that are awarded shall be to the "responsible" and responsive bidder submitting the low responsive bid: Determination of "responsibility" shall comply with the requirements of RCW 39.10. AIA Document Al21 CMc. 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Assodated General Init. Contractors of America. AB rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 12 • reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: • Yakima 15169439_3.DOC (3144662520j • 0 .9 The Construction Manager shall ensure compliance with RCW 39.10 and with all the above requirements for Subcontractor solicitation, and subcontracts shall conform to the requirements of RCW 39.10. - . , ... - . . § 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Sections 7.1.8 and 7.1.9 and shall not be awarded on the 1 basis of cost plus a f e - : . . • - _ - _ - , • -- e - - . . § 2.3.2.4 The Construction Manager shall schedule and conduct weekly progress meetings at which the Owner, Architect, Program Manager, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construstien-Program Manager shall prepare and promptly distribute meeting minutes. § 2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction • Manager shall prepare a schedule in accordance with Section 3.10 of A201T"_1997 and other Contract • . Documents, including the Owner's occupancy requirements. The Construction Manager shall provide regular , monitoring and shall update monthly (or sooner in the event of a substantial change) the Construction Sche dule as Work progresses. § 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work. The reports shall: .1 Include information concerning both the entire Project and each subcontract bid package. . .2 Identify variances between scheduled and probable completion dates, and recommend action required • to meet schedule completion dates. • .3 Review the schedule for portions of the_Project not started or incomplete and recommend to the Owner alternate procedures or adjustments to meet the scheduled completion dates. • .4 Provide summary reports of each schedule update. .5 Document all significant changes in the schedule and any Owner's approval of them and reflect the reasons for them. . .6 Record in writing and by photographs the progress of the Project. .7 Identify significant problems in scheduling together with recommended corrective action. .8 Maintain and report a QC log_ . .9 Document any outstanding RFIs and risks associated with delayed responses. - • . .10 List outstanding submittals and risks associated with delayed responses. .11 Document any outstanding Change Orders and any risks associated with delayed responses. ..12 The status of permits that the Construction Manager is required to obtain. The Construction Manager shall maintain and submit monthly with -its Application for Payment a daily log containing a record of weather, Subcontractors working on the site, number of workers, equipment on site deliveries, Work accomplished, problems encountered and other similar relevant data as the Owner- Program Manager may reasonably require. The log shall be available to the Owner- Program Manager and Architect, but information therein does not constitute notice of a potential or actual Claim to the Owner. 0 AIA D ocument Al21 T' CMe- 2003 and AGC Document 565. Copyright ©1991 and 2003 b The American Institute of Architects and The Associated General Init Contractors of America. All rights reserved. WARNING: Thi document is protected by U.S. Copyright Law and International Treaties. Unauthorized 13 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the f maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 21212009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_1000 (3144662520) § 2.3.2.7 The Construction Manager shall develop a system of cost control for the Work, including regular • monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular monthly intervals. The Construction Manager shall include a Project • status report in a format acceptable to the Owner, listing (i) all pending and/or approved Change Orders and Construction Change Directives (includingamounts), (ii) an analysis of the Specified General Conditions budget with an explanation of substantial variances from previous budgets, (iii) projected cash flow of construction costs, (iv) an allocation by bid package and schedule -of- values line item, (v) expenditures to date, (vii) estimates to complete, (vii) forecast at completion, and (viii) variances with budget and commitment. • 2.3.2.8 The Construction Mana • er shall review and ins • ect the Work of the Subcontractors on a re l lar basis for defects and deficiencies in their Work and for conformance with the Drawings, Specifications and other Contract Documents. and shall stop the Work of Subcontractors if necessary. The Construction Manager shall provide notification at regularly scheduled progress meetings of any major defects or deficiencies and recommend remedial action. • 2.3.2.9 The Construction Mana • er shall maintain in l ood order and on a current basis a record co • of all subcontracts, purchase orders, drawings marked to record all changes made during construction, specifications, addenda, change orders, and other modifications; shop drawings; product data; samples; submittals; inspection reports; purchases; materials; equipment; applicable handbooks; maintenance and operating manuals and instructions; other related documents and revisions which arise out of subcontracts or Work. These records shall be available to the Owner, and, at completion of the Project, delivered to the Owner. • 2.3.2.10 As • art of the S • ecified General Conditions the Construction Mana• er shall • rovide an ade • uate and experienced staff consistent with or in excess of that specified in its Proposal. The staff shall include necessary and appropriate project managers, superintendents, field engineers, engineers, quality control specialists, • scheduling engineers, cost engineers, clerical, accounting, and data processing personnel, and others so that ., : • among other things: • the Work is performed and coordinated in a timely manner in compliance with the Contract Documents; • Change Order Proposals and responses to Construction Change Directives are submitted to the Owner within a target of ten (10) days after the Construction Manager's receipt; • Replies to correspondence from the Owner, Subcontractors, and governmental agencies are answered within a target of seven (7) days; and • Final Completion is achieved within the time specified in the Contract Documents and consistent with the General Conditions. § 2.3.2.11 Apprenticeship. .1 Pursuant to RCW 39.04.320, the Construction Manager shall achieve apprentice participation of at Least ten percent (10 %1 of the total construction labor hours. .2 Apprentice hours shall be performed by participants in training programs approved by the Washington State Apprenticeship Council. .3 "Labor hours" means the total hours of workers receivingan hourly wage who are directly employed on the site of the public works project. "Labor hours" includes hours performed by workers employed by the Construction Manager and all Subcontractors working on the Project. "Labor hours" does not include hours worked by foremen, superintendents, owners, and workers who are not subject to prevailing wage requirements of RCW 39.12. .4 During the term of this Contract, the Owner may adjust the apprentice labor hour requirement upon its finding or determination that includes: ( 1) A demonstration of lack of availability of apprentices in the geographic area of the Project; (2) A disproportionately high ratio of material costs to labor hours that does not make feasible the required minimum levels of apprentice participation; (3) Demonstration by participating contractors of a good faith effort to comply with the requirements of RCW 39.04.300, 39.04.310 and 39.04.320; AIA Document Al21 CM• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The•American Institute of Architects and The Associated General !nit Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 14 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the - / maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/212009 under Order No. 1000354960_1 which expires on 51512009, and is not for resale. User Notes: Yakima 15169439_3.D0C (3144662520) • I 4 Small contractors or subcontractors e. small or emerging businesses) would be forced to • () ( g. , g g 1 displace regularly employed members of their workforce; (5) The reasonable and necessary requirements of the Contract render apprentice utilization infeasible - at the required level (e.g., the number of. skilled workers required and/or limitations on the time available to perform the Work preclude utilization of apprentices); or (61 Other criteria the Owner deems appropriate, which are subject to review by the office of the Governor. .5 The Construction Manager shall report apprentice participation to the Owner at least quarterly, on . forms provided or approved by the Owner. In addition, copies of quarterly certified payroll records may be requested to document the goal. The reports will include: , (1) The name of the Project; (2) The dollar value of the Project; • (3) The date of the Construction Manager's notice to proceed; (4) The name of each apprentice and apprentice registration number; . (5) The number of apprentices and labor hours worked by them, categorized by trade or craft. (6) The number of journey level workers and labor hours worked by them, categorized by trade or craft: and (7) The number, type, and rationale for the exceptions granted. § 2.4 PROFESSIONAL SERVICES , 1 Section 3.12.10 of A201T as revised, shall apply to both the Preconstruction and Construction Phases. § 2.5 HAZARDOUS MATERIALS . • 1 Section 10.3 of A201T _1997, as revised, shall apply to both the Preconstruction and Construction Phases. ARTICLE 3 OWNER'S RESPONSIBILITIES „, • § 3.1 INFORMATION AND SERVICES . . 0 . § 3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space.. - requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. § 3.1.2 The Owner shall, at the written request of the Construction Manager prior to commencement of the . Construction Phase and thereafter, furnish to the Construction Manager reasonable evidence that financial • arrangements have been made to fulfill the Owner's obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the - - Construction Manager. § 3.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs • which are the responsibility of the Owner. . § 3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS In the Preconstruction Phase,.the Owner shall furnish the following with reasonable promptness and at the Owner's expense. Except to the extent that the Construction Manager knows of any inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Sections 3.1.4.1 through 3.1.4.4 but shall exercise customary precautions • relating to the performance of the Work. § 3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. § 3:1.4.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent AIA Document Al21 CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General • Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 15 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 1 maximum extent possible under the law. This document was produced by AIA software at 23:31:28 an 2/212009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC • (3144662520) drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and • g , contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark. § 3.1.4.3 The services of a geotechnical engineer when such services are requested by the Construction Manager and approved by the Owner. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. § 3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. § 3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the 1 Project and are requested by the Construction Manager and approved by the Owner. - § 3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization. This representative shall have the authority to make decisions on behalf of the Owner concerning estimates and schedules, construction budgets, and changes in the Work, and shall render such decisions promptly and furnish timely requested information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager. Except as otherwise provided in Section 4.2.1 of A201TM -1997, neither the Program Manager nor the Architect dees riet-havehas such authority. Anv decisions and approvals involving a change in the scope of the Work, in the GMP, and/or the Contract Time, or involving modification or waiver of the terms of the Contract Documents must be approved by the Owner's City Manager. § 3.3 ARCHITECT The Owner shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services, other than cost estimating services, described in the of this Owner- Architect Agreement. The Owner shall authorize and cause the Architect to provide those Additional Services described in B151TM 1997the Owner - Architect Agreement, requested by the Construction _ Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to the . Construction Manager a copy of the Owner's Agreement with the Architect, from which compensation provisions may be deleted. § 3.4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in 1 the jurisdiction of the Project. The Owner shall furnish such legal services on its own behalf as are necessary to provide the information and services required under Section 3.1. _ - ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION. PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: § 4.1 COMPENSATION § 4.1.1 For the services described in Sections 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: AIA Document Al21' CMc• 2003 and AGC'Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General /nit Contractors of America. AU rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 16 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • _ . . . . . . . • Compensation for the Preconstruction Services shall be on an hourly basis at the rates and for the individuals specified in Attachment 4. In addition, the Construction Manager shall receive compensation for anv pre- . approved non -labor costs incurred to perform the Preconstruction Services, including equipment at the hourly rates specified in Attachment 4. Non -labor costs include but are not limited to costs of testing, intrusive investigation, selective demolition and restoration, copying, blueprints and courier costs. The Preconstruction Services rates include personnel and consultant costs and benefits, materials, equipment, taxes, profit and overhead. Costs that would cause the not -to- exceed amount to be exceeded shall be paid by the Construction Manager without reimbursement by the. Owner. _ . (State basis of compensation, whether a stipulated sum, multiple of Direct Personnel Expense, actual cost, etc. Include a statement of reimbursable cost items as applicable.) - § 4.1.2 Compensation for Preconstruction Phase Services shall be equitably adjusted using the hourly rates specified in Attachment 4 ' . - - - _ - - - . • the originally contemplated scope of services is significantly modified. The parties contemplate that Preconstruction Phase Services for Phase 1 will end on or around May 1, 2009, Phase 2 on or around November 30, 2009, and Phase 3 on or around February 1, 2010. These dates are subject to future modification by written agreement of both parties. . § 4.1.3 Notwithstanding anything herein to the contrary, the Owner is not obligated to make payment for . Preconstruction Services performed for a Component beginning fourteen (14) days after the Construction . Manager's submittal of its GMP proposal for that Component to the Owner. 0 § 4.2 PAYMENTS • § 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. The invoice will contain detail of and support for the services performed. 1 § 4.2.2 Payments are due - and payable thirty ( 30 ) days from the late the Construction Manager's invoice is , . . received by the Owner. Amounts unpaid after the date on which payment is due shall bear interest at the rate entered below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the . Project is located. (Insert rate of interest agreed upon.) • Pursuant to RCW 39.76, not to exceed the Bank of America prime rate plus 1% per annum • (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places of business, the location of the • Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to • deletions or modifications, and also regarding requirements such as written disclosures or waivers.) . , 4.3 The Fee Pro 6 osal Form is included in and made , art of this Contract b this reference. In-the event of an conflict between this attached document and the Contract, the provisions of the Contract shall govern. • ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follows: AIA Document Al21 TM CMc. 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General • Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 17 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 212/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. - User Notes: Yakima 15169439_3.DOC (3144662520) 5.1 COMPENSATION • § 5.1.1 For the Construction Manager's performance of the Work as described in Section 2.3, the Owner shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined 1 in Article 7-6 of this Agreement and the Construction Manager's Fee determined as follows: (State a lump sum, percentage of actual Cost of the Work or other provision for determining the Construction Manager's Fee, and explain how the Construction Manager's Fee is to be adjusted for changes in the Work) Fee: The Construction Manager's Fee for the Work in a Component during the Construction Phase shall be the fixed, lump sum amount that will be calculated as the percentage specified in the Fee Proposal Form times the MACC for that Component when the GMP for the Component is established. The Fee also will be applicable to Costs of the Work performed by the Construction Manager's own forces, which Costs of the Work shall not include overhead and profit. The Fee shall not apply to Work the Construction Manager performs as the successful bidder on a Subcontractor bid package or to the Specified General Conditions. In the event a Change Order is issued for a Change in the Work, the change in the Construction Manager's Fee will be calculated as follows: _ 1) If the Construction Manager performs - -12% Fee. 2) If a Subcontractor performs —its fee is 12% and the Construction Manager's Fee is 7 %. 3) If a lower tier Subcontractor performs —its fee is 6% and the fees in item 2 apply. 4) The total Fee of the Construction Manager plus the fees of all Subcontractors of anv tier shall not exceed 25 %. § 5.2 GUARANTEED MAXIMUM PRICE § 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee for a Component are guaranteed by the Construction Manager not to exceed the amount provided in the Amendment No. lfor that Component, subject to additions and deductions by changes in the Work as provided in the Contract Documents. Such - maximum sum as adjusted by approved changes in the Work is referred to in th•Contract Documents as the . Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be • paid by the Construction Manager without reimbursement by the Owner. • (Insert specific provisions if the Construction Manager is to participate in any savings.) • I N/A § 5.3 CHANGES IN THE WORK § 5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the - 1 execution of an Amendment No. 1 may be determined for that Component by any of the methods listed in _ Section 7.3.3 of A201T"_1997. § 5.3.2 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and "fee" as used in Section 7.3.3.3, Section 7.3.6 and Section 7.5 of A201T"_1997, as revised ., ... - - - -• " " .. _ • ... - . - ...., • ... " _ - - . . ! ' ` shall have the meanings assigned to them in that document and shall not be modified by this Article 5. Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. § 5.3.3 In calculating adjustments to the Contract for Work performed by the Construction Manager, the terms "cost" and "costs" as used in the above- referenced provisions of A201TM --1997 shall mean the Cost of the Work. - as defined in Article 6 of this Agreement, and the term "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Section 5.1.1. of this Agreement. k. AIA Document Al21 TN CMc• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 18 • reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 COSTS TO BE REIMBURSED , § 6.1.1 The term "Cost of the Work" shall mean the actual, net costs reasonably and necessarily incurred by the Construction Manager in the proper performance of the Work, without Fee or markup. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items.set forth in this Article 6. § 6.1.2 LABOR COSTS . .1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's agreement, at off -site workshops or transporting materials, equipment or personnel to and from the Project site. .2 Wages or salaries of the Construction Manager's supervisory and administrative personnel are included in the Specified General Conditions and not separately reimbursabl . Classification Name . N/A (If it is intended that the wages or salaries of certain personnel stationed at the Construction Manager's principal office or offices other than the site office shall be included in the Cost of the Work such personnel shall be identified below.) .3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work are included in the Specified General Conditions and not separately reimbursable. .4 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, Ili . assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided that such costs are based onwages and - salaries included in the Cost of the Work under Sections 6.1.2.1 through 6.1.2:3. Costs paid or incurred by the Construction Manager for vacations, bonuses; travel, stock options, deferred compensation, or discretionary payments to employees are not directly reimbursable. As part of an Amendment, the parties may agree to a wage burden rate for all workers under Clause 6.1.2.1, • which will be fully burdened, including all the wage -based costs, and fixed for the duration of the Contract Time. Burden rates are subject to the Owner's audit to confirm that the Construction . Manager has properly applied the burden in accordance with the Contract Documents but not to recalculate the components of the burden. 0 § 6.1.3 SUBCONTRACT COSTS . Payments made by the Construction Manager to Subcontractors in accordance with the requiremen of the subcontracts. The Construction Manager shall maintain a procedure for the review, processing and payment of applications by the Subcontractors for progress and final payments, all in accordance with the terms and conditions of the Contract Documents. The Construction Manager shall verify the completeness of all applications for payment and assemble and check all supporting documentation required by the Contract • Documents or by the "subcontracts with respect to each Application for Payment, including all lien waivers and releases. § 6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION Costs of material and equipment procured by the Construction Manager and incorporated in the completed construction will generally be included in Negotiated Support Services. .1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in • the completed construction. , .2 Costs of materials described in the preceding Section 6.1.4.1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed over to the Owner at the completion of the Work or, at the AIA Document Al21 TM CMc• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General • Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 19 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 212/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • Owner's option, shall be sold or returned by the Construction Manager; amounts realized, if an P Y g any, from such sales or returns shall be credited to the Owner as a deduction from the Cost of the Work. § 6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS Costs of other material and equipment, temporary facilities and related it ems procured by the Construction Manager will generally be included in Negotiated Support Services, but some may be designated in Specified General Conditions. Field offices and sheds, including all furniture, technology, communication (including cell phones), personal transportation (including pickup trucks) and clerical equipment therein, temporary controls (except cleaning and erosion controls), temporary environmental health and safety controls, project identification and temporary signage, and delivery by the Construction Manager, on -site storage and handling are Specified General Conditions. .1 Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, and equipment (as described in the Contract Documents), and -hand -teals -not customarily owned by the construction workers, which are • provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. .2 Rental charges (not to exceed the local fair market rental costs) actually paid to non - related third parties for temporary facilities, machinery, and equipment and-hand-teels -not customarily owned by the construction workers, which are provided by the Construction Manager at the site, whether rented from the Construction Manager or others, and costs of transportation, installation, • minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented that exceed the local fair market rental costs shall be subject to the Owner's prior approval. Total rental charges for equipment or tools shall not exceed 75% of the fair market purchase value of the equipment or the tool. R • entals from the Construction Manager or any entity in which the Construction Manager or one or more of its owners has a direct or indirect ownership interest ( "CM Equipment ") shall not exceed Rental Rate Blue Book by Data Quest, San Jose, California, or fair market rental costs, • whichever are lower: If more than one rate is applicable, the best available rate will be utilized. • The rates in effect at the time of the performance of the Work are the maximum rates allowable for equipment of modern design and in good working condition and include full compensation for furnishing all fuel, oil, lubrication, repairs, maintenance, and insurance to the same extent as the comparable Blue Book or fair market rate. Equipment not of modem design and/or not in good working condition will have lowerrates. Hourly, weekly, and/or monthly rates, as appropriate, will be applied to yield the lowest total cost. When the rate payable does not include fuel, lubricants, standard maintenance and servicing, such operating costs shall be reimbursed . based upon actual costs. When rental rates payable do not include fuel, lubrication, maintenance and servicing, as defined as operating costs in the Blue Book, such operating costs shall be reimbursed based on actual costs. The rate for CM Equipment necessarily standing by for future use on the Work shall be 50% of the rate established above. If equipment is required for which a rental rate is not established by the Blue Book, an agreed rental rate shall be established for that • equipment, which rate and use must be approved by the Owner prior to performing the Work. .3 Costs of street cleaning and removal of rubbish and debris from the site, including the buildings. • expenses of the sitc office. .5 That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work with the Owner's prior written approval, but not including commuting or travel costs from the Construction Manager's office are Specified General Conditions. AIA Document Al21 TM CMc• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General /nit. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 20 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 212/2009 under. Order No. 1000354960_1 which expires on 5/512009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • 6.1.6 MISCELLANEOUS COSTS . • 0 , § US CO . 1 That portion directly attributable to this Contract of the actual net costs of premiums for Builder's Risk insurance rifiEl-bendsrequired by the Contract Documents, after taking into consideration cost adjustments including, for example, experience modifiers, premium discounts, policy dividends, rebates, and refunds, retrospective rating plan premium adjustments, and assigned risk pool rebates are Specified General Conditions. All other premiums are not Costs of the Work but are included within the Construction Manager's Fee. (If charges for self- insurance are to be included, specify the basis of reimbursement.) None unless pre- approved by the Owner in writing_ .2 Sales or similar taxes B &O and income taxes 'imposed by a governmental authority which are related to the Work and for which the Construction Manager is liable are Specified General Conditions. Sales tax is not included in the Cost of the Work, the GMP, or the Contract Sum. . 3 Fees and assessments for Project - specific permits, licenses and related governmental inspections for which the Construction Manager (but not Subcontractors) is • required by the Contract Documents to pay. .4 Fees of testing laboratories for tests required of the Construction Manager by the Contract Documents, except those related to nonconforming Work other than that for which payment is permitted by Section 6.1.8.2. .5 Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments . made in accordance with legal judgments against the Construction Manager resulting from such ' suits or claims and payments of settlements made with the Owner's consent; provided, however, that such costs of legal defenses, judgment and settlements shall not be included in the • calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided . 410 that such royalties, fees and costs are not excluded by the last sentence of Section 3.17.1. of A201TM --1997 or other provisions of the Contract Documents. :7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the Owner set forth in this Agreement. • .8 Legal, mediation and arbitration costs, other than those arising from disputes between or including the Owner and Construction Manager, reasonably incurred by the Construction Manager in the performance of the Work and with the Owner's written permission, which - permission shall not be unreasonably withheld. - .10 The cost of pre- approved warehousing of stored materials or equipment subsequently incorporated into the Work. . § 6.1.7 OTHER COSTS . . 1 Other costs incurred in the performance of the Work if and to the extent approved in advance in , • writing by the Owner. . .2 Temporary heat and temporary hookups and temporary meter installation for water, utilities., natural gas, sewer and storm sewer, necessary for proper execution and completion of the Work and included in Negotiated Support Services. § 6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK The Cost of the Work shall also include costs described in Section 6.1.1 which are incurred by the Construction Manager: .1 In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 10.6 of A201T 4110 AIA Document Al21 CM- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 21 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the t maximum extent possible under the law. This document was produced by MA software at 23:31:28 on 2/2/2009 under Order No. 1000354960 1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) .2 In repairing or correcting damaged or nonconforming Work executed by the Construction p g g g g Y Manager or the Construction Manager's Subcontractors of any tieror suppliers, provided that such damaged or nonconforming Work was not caused by the negligence or failure to fulfill a specific responsibility to the Owner set forth in this agreement of the Construction Manager or the Construction Manager's foremen, engineers or superintendents, or other supervisory, administrative or managerial personnel of the Construction Manager, or the failure of the Construction Manager's personnel to supervise adequately the Work of the Subcontractors or suppliers, and only to the extent that the cost of repair or correction is not recoverable by the Construction Manager from insurance, Subcontractors or suppliers. • 6 6.1.9 NEGOTIATED SUPPORT SERVICES Negotiated Support Services by the Construction Manager may be accomplished and will be reimbursed as - Costs of the Work within the GMP only as follows: • Negotiated Support Services described and included in the GMP. o Units of Negotiated Support Services may be accomplished by the Construction Manager during the Construction Phase, subject to prior written Owner approval, if the Cost of the unit of the Work is less than $35,000. o Negotiated Support Services are exempted from the subcontract bidding requirements. § 6.1.9 -10 The costs described in Sections 6.1.1 through 6.1.8 shall be included in the Cost of the Work notwithstanding any provision of AIA or A201T"_1997 other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 6.2. $ 6.1.11 SPECIFIED GENERAL CONDITIONS • The fixed, lump sum contained in the Construction Manager's response to the RFP for certain detailed, selected and identified general conditions work and services to be provided by the Construction Manager, as specified in Exhibit G ( "Specified General Conditions "). The Specified General Conditions Work is to be performed by the Construction Manager with its own forces in most instances and to include the Preconstruction Services and activities for a Component that occurs after the GMP is established through execution of an Amendment for that Component. While overhead and profit may be contained within the fixed, lump sum, the Fee is not applied to the Specified General Conditions. § 6.2 COSTS NOT TO BE REIMBURSED § 6.2.1 The Cost of the Work shall not include: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Sections 6.1.2.2 and 6.1.2.3. .2 Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Section 6.1. .3 Overhead and general expenses, except as may be expressly included in Section 6.1. .4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. • .5 Rental costs of machinery and equipment, except as specifically provided in Section 6.1.5.2; or costs or losses resulting from lost, damaged or stolen machinery or equipment or negligent or - improper use of machinery or equipment. .6 Except as provided in Section 6.1.8.2, (1) costs due to the negligence of the_Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the Owner set forthin this Agreement; or (2) to the extent of the Construction Manager's fault or negligence, costs due to the fault or negligence of Subcontractors of any tier (including the Construction Manager when self - performing subcontract Work), or anyone directly or indirectly employed by any of them. .7 Costs incurred in the performance of Preconstruction Phase Services. .8 Except as provided in Section 6.1.7.1, any cost not specifically and expressly described in Section 6.1. • AIA Document Al21 "' CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General • Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 22 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the taw. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) 0 • .9 Costs which would cause the Guaranteed Maximum Price as adjusted by approved Change Orders to be exceeded. - .10 Direct payments by the Owner for the building permit, reserve capacity fees, and plan-check fees. . including SEPA, design review, and land use fees are not a part of the Cost of the Work or the GMP. .11 Overtime.wages, unless pre - approved by the Owner. • .12 Data processing, software, hardware or computer - related costs not included in the Specified General Conditions. .13 Penalties and fines imposed by a governmental entity. . .14 . Safety costs not included in the Specified General Conditions. .15 Liquidated damages. ' .16 Except as included within the Specified General Conditions, reproduction costs (except for Subcontractor bid packages), costs of telegrams, facsimile transmissions and long - distance telephone calls, postage and express delivery charges, telephone at the site and reasonable petty cash expenses of the site office. .17 Legal, consultant, or claims - related expenses except as specifically provided in Section 6.1.6.8. § 6.3 DISCOUNTS, REBATES AND REFUNDS § 6.3.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) before making the payment, the Construction Manager included them in an Application for Payment and 1 received payment therefor from the Owner within ten days of submittal of the Application for Payment, or (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received ' from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be secured. The Construction Manager shall notify the Owner in a timely manner of the availability of such cash discounts, rebates, or refunds. § 6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Section 6.3 .1 shall be credited • to the Owner as a deduction from the Cost of the Work. § 6.4 ACCOUNTING RECORDS § 6.4.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be , necessary for proper financial management under this Contract; the accounting and control systems shall be , satisfactory to the Owner. The Owner and the Owner's accountants shall be afforded access to and permitted to ._ copy at the Owner's cost, including electronic copying, the Construction Manager's original records, books, general ledgers, computerized records, daily reports, correspondence, instructions, drawings, receipts, ' subcontracts; purchase orders, Subcontractor and supplier invoices, vouchers, memoranda and other data relating to this Project or to any Claim, and the Construction Manager shall preservethese for a period of three years after final payment, or for such longer period as may be required by law. ARTICLE 7 CONSTRUCTION PHASE _ § 7.1 PROGRESS PAYMENTS - ' . § 7.1.1 Based upon properly. prepared Applications for Payment submitted to the Architect Program Manager by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents: The submission of this Application constitutes a certification that the Work is current on the Construction Schedule, unless otherwise noted on the Application. The Application shall be in a form acceptable to the Owner. . § 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: . 1 Not applicable • § 7.1.3 Applications for Payment . AIA Document Al21"' CMG- 2003 and AGC Document 565. Copyright 0 1991 and 2003 by The American Institute of Architects and The Associated General • Init. Contractors of America. All rights reserved. WARNING; This document is protected by U.S. Copyright Law and International Treaties, Unauthorized 23 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the i maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960 J which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) .1 Draft Application. At the last scheduled weekly meeting of each month, the Construction Manager shall submit to the Program Manager the reports required in Paragraph 2.3 and a draft. itemized application for p_avment for Work performed during that calendar month on a form supplied or approved by the Owner. This shall not constitute a payment request. The Construction Manager, the Program Manager and the Architect shall confer prior to the last working day of the month regarding the current progress of the Work and the amount of payment to which the Construction Manager is entitled; the Owner may also attend. The Program • Manager, Architect or Owner may request the Construction Manager to provide data substantiating the Construction Manager's right to payment as the Program Manager, Architect or Owner may require, such as copies of invoices from Subcontractors of any tier, lien releases and approved payrolls, and reflecting retainage as provided elsewhere in the Contract Documents. The Construction Manager shall not be entitled to make a payment request, nor is any payment due the Construction Manager, until such data is furnished. .2 Payment Request After the Construction Manager, the Owner, the Program Manager and the Architect have met and conferred regarding the updated draft application, and the Construction Manager has furnished all progress information required and all data requested by the Program Manager or the Architect, the Construction Manager may submit a payment request by the last working day of the month following the meeting in the agreed -upon amount, in the form of a notarized, itemized Application for Payment for Work properly performed during that calendar month on a form supplied or approved by the Owner, along with a lien release on a form furnished by the Owner from each Subcontractor for whose Work the Owner paid the Construction Manager for the prior month. The Application shall also state that prevailing wages have been paid in accordance with the prefiled statements of intent to pay prevailing wages on file with the Owner and that all payments due Subcontractors of any tier from the Owner's payment the prior month have been made. .3 Payment. Provided an Application for Payment is received by the Architect Program Manager not later than the last working day of a month, the Owner shall make payment to the Construction Manager not later than the' last day of the following month. If an Application for Payment is received by the Architect after the application`. . date fixed above, payment shall be made by the Owner not later than thirty ( 30 ) days after the Architect .._ - receives the Application for Payment. .4 Disputed Amounts. If the Construction Manager believes it is entitled to payment for Work performed ` during the calendar month in addition to the agreed -upon amount, the Construction Manager may, also by the last working day of that month and after the meeting in Clause 7.1.3.1, submit to the Program Manager, Owner and the Architect along with the approved Application for Payment a separate writtenpayment request specifying the exact additional amount due, the category in the schedule of values in which the payment is due, . the specific Work for which the additional amount is due, and why the additional payment is due. Furthermore, for the submittal to be considered, pursuant to WAC 296- 127 -320, the Construction Manager and all Subcontractors shall file with the Owner by the same date certified copies of all payroll records relating to the additional amount sought. § 7.1.4 - _ .. _ . . . -. - - , The Construction Manager shall submit monthly its current detailed computerized substantiationjsuch as a detailed job cost report) and lien releases; the Construction Manager shall only submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence if required by the Program Manager, Owner or Architect. The Construction Manager will be required to account on a monthly basis as part of its Application for Payment separately for each Component and for certain portions of the-Project that the Owner defines prior to setting the GMP. The Application for - -° -Payment will also include allocation of Specified General Conditions. Upon request, the Construction Manager shall demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1) progress payments already received by the Construction Manager; less (2) that portion of those payments attributable to the Construction Manager's Fee; plus (3) payrolls for the period covered by the present Application for Payment. The Constniction Manager shall promptly, following the date of execution of an Amendment, prepare a comprehensive list of equipment that it anticipates to rent for that Component. The Construction Manager shall maintain and submit to the Owner monthly a detailed equipment inventory of all equipment it has purchased and charged as a Cost of the Work or job -owned through aggregate. rentals and shall prepare an equipment rental report that identifies the equipment rented for the month and identifies the source of the rented equipment. The inventory" shall include (1) the original acquisition cost and AIA Document Al21 CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General. Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 24 • reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 21212009 under Order No. 1000354960_1 which expires on 51512009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • . . • • , , III date, (2) the' Owner - approved fair market value of the equipment when first used on the Project, and (3) the final disposition: § 7.1.5 At least fourteen (141days before the first Application for Payment for each Component, the Construction Manager shall submit to the Architect a schedule of values allocated to various portions of the Work for that Component, prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect or the Owner, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. Mobilization shall be a maximum of one- half of one percent (0.5 °4) of the GMP, and shall be paid only if supported by an itemized breakdown of costs acceptable to the Owner; the schedule of values shall allocate at least one percent'(1 %) of the GMP to Commissioning of Operational Systems, as defined in the Contract Documents; and the schedule of values shall also allocate at least two percent (2 %) of the listed value of each line item in the schedule of values to that portion of the Work between substantial completion and final completion of that line item, to be earned and become payable in the next Application for Payment upon final completion of that line item. Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in. accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee, contingency, and Specified General Conditions shall be shown as a single separate items. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect Program Manager . may require. This schedule, unless objected to by the Architect or Program Manager, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. • § 7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of (1) • • - the percentage of that portion of the Work which has actually been completed or (2) the percentage obtained by • - dividing (a) the expense which has actually been incurred by the Construction Manager on account of that . - , S portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. The Architect will, within seven (7) days after receipt of the Construction • Manager's Application for Payment. either issue to the Owner a Certificate for Payment, witha copy to the . Construction Manager, or notify the Construction Manager and Owner in writing of the Architect's reasons for . • - withholding certification in whole or in part as provided in Section 9.5.1 of the A201 General Conditions: . • § 7:1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows": • .. • - .1 Take that portion of the Guaranteed Maximum Price for a Component properly allocable to completed Work in that Component as determined by multiplying the percentage completion of • each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as provided in Section 7.3.8 of • A201TM -1997, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. . .2 Add that portion of the Guaranteed' Maximum Price properly allocable to materials and - • equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if • • approved in advance by the Owner, suitably stored off the site at a location agreed upon in . - • writing. .3 Add the Construction Manager's Fee less rctainage of ( ). The Construction Manager's Fee shall shall be an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work in the two preceding Sections bears to a reasonable estimate of the probable Cost of the Work upon its completion. .4 Subtract the aggregate of previous payments for that Component made by the Owner. . ALA Document Al21 n CMe- 2003 and AGC Document 565. Copyright ® 1991 and 2003 by The American Institute of Architects and The Associated General 411/ Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and international Treaties. Unauthorized 25 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960 1 which expires on 5/5/2009, and is not for resale. • User Notes: Yakima 15169439_3.DOC (3144662520) • .5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation , Y g required by Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation. .6 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment or the Owner has withheld payment as provided in Section 9.5 of A201Tm-1997. .7 Subtract the statutory retainage of five percent (5 %) of the completed Work, including equipment and Subcontractor costs, as a fund for the protection and payment of the claims of any person or entity arising out of the Work and the state with respect to taxes. § 7.1.8 Except with the Owner's prior approval, payments to Subcontractors shall be subject to retention of not less than five (5% ). The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. § 7.1.9 Except with the Owner's prior approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 7.1.10 In taking action on the Construction Manager's Applications for Payment, the Architect, the Program Manager and the Owner shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect, Program Manager or Owner has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Section 7.1.4 or other supporting data, that the Architect, Program Manager or Owner has made exhaustive or continuous on -site inspections or that the Architect, Program Manager or Owner has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications; if required by the Owner, will be performed by the Owner's accountants acting in the sole interest of the Owner. Payment by the Owner shall not constitute final approval of the Work done or the amount due. § 7.2 FINAL PAYMENT § 7.2.1 Final payment not including statutory retainage) shall be made by the Owner to the Construction Manager within 30 days of the Owner's Final Acceptance of all the Work under the Contract, which shall occur when (1) the Contract has been fully performed by the Construction Manager except for the Construction - Manager's responsibility to correct nonconforming Work, as provided in Section 12.2.2 of A201Tm -1997, and to satisfy other requirements, if any, which necessarily survive final payment; (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed by the Owner's accountants; and-(3) Final Completion has been achieved; (4) a final Certificate for Payment has then been issued by the Architect; and (5) the requirements for Final Acceptance in the revised A201 -1997 General Conditions are m e t . . - - - . - . . . : - : - - = e • • : - : • - - - . § 7.2.2 The amount of the final payment shall be calculated as follows: .1 Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. - .2 Subtract amounts, if any, for which the Architect Owner withholds, in whole or in part, a final Certificate Application for Payment as provided in Section 9.5.1 of A201Tm -1997 or other provisions of the Contract Documents. .3 Subtract the aggregate of previous payments made by the Owner. .4 Subtract the statutory retainage. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager, .the Construction Manager . shall reimburse the difference to the Owner. AIA Document Al21Th CMc- 2003 and AGC Document 565. Copyright 01991 and 2003 by The American Institute of Architects and The Associated General Init Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 26 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 212/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) 7.2.3 The Owner's accountants will review and report in writing on the Construction Manager's final III . • § P g g accounting within 30 days after delivery of the final accounting to the Architcct Program Manager by the Construction Manager. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's accountants, either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager or notify. the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided • in Section 9.5.1 or other applicable provisions of A201T"_1997 . - • • - . : - - - - . per3ede these statcd in Section 9.4.1 of A201Tm 1997. The Owner's final accounting shall not preclude or in any way limit the Owner from exercising its rights of audit under other provisions of this Contract. • § 7.2.4 If the Owner's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to invoke the dispute resolution procedure of Section 4.4 of the revised General Conditions.preseed-in • _ - - .., -, • , - . • - . _ , _ _ . Unless agreed to otherwise, commencement of the dispute resolution procedure for.: _ •- ..- : : - .. . ... • , . : the disputed amount shall be made by the Construction Manager within 60 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to commence the dispute resolution procedure within this 60 -day period shall result in the substantiated amount reported by the Owner's accountants becoming binding on the Construction Manager. Pending a fmal resolution of the disputed amount, the Owner shall pay the Construction Manager the undisputed amount certified the Architcct's final C teApplication for Payment. § 7.2.5 If, subsequent to fmal payment and at the Owner's request, the Construction Manager incurs costs described in Section 6.1 and not excluded by Section 6:2 (1) to correct nonconforming Work or (2) arising from .. 1 the Owner- approved resolution of disputes, the Owner shall reimburse the Construction Manager such costs and 0 the Construction Manager's Fee, if ariy, related thereto on the same basis as if such costs had been incurred prior to fmal payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings, the amount of such savings shall be recalculated and appropriate credit given to the . Owner in determining the net amount to be paid by the Owner to the Construction Manager. . $ 7.2:6 Statutory retainage will be paid as specified in the revised A201 -97 General Conditions and RCW 60.28. ARTICLE 8 INSURANCE AND BONDS - § 8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER ' - During both phases of the Project, the Construction Manager shall purchase and maintain insurance as set forth in Section 11.1, of A201TM -1997. Such insurance shall be written for not less than the following limits, or greater if required by law: § 8.1.1 Workers' Compensation and Employers' Liability meeting statutory limits mandated by state and federal laws. If (1) limits in excess of those required by statute are to be provided, or (2) the employer is not statutorily bound to obtain such insurance coverage or (3) additional coverages are required, additional coverages and limits for such insurance shall be as follows: ' The Construction Manager shall purchase and maintain, and shall require Subcontractors to purchase and maintain, insurance for claims under workers' compensation (industrial insurance), disability benefit and other similar employee benefit acts in the State statutory amount and Stop Gap Liability Insurance (Employer's Contingent Liability Insurance) with coverage of at least $1,000,000 each occurrence /each accident. For any employees not subject to the State Act, the Contractor shall provide and shall cause each subcontractor to provide compensation insurance with a private company in an amount equivalent to that provided by the Workers' Compensation Statute, but no less than a $1,000,000 limit of liability, for the protection of his employees not otherwise protected. AIA Document Al21 TM CMc• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General - • init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized . 27 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. . User Notes: Yakima 15169439_3.DOC (3144662520) § 8.1.2 Commercial General Liability including coverage for Premises - Operations, Independent Contractors' Protective, Products - Completed Operations, Contractual Liability, Personal Injury and Broad Form Property Damage (including coverage for Explosion, Collapse and Underground hazards): $1,000,000 Each Occurrence • $2,000,000 General Aggregate $1,000,000 Personal and Advertising Injury $2,000,000 Products - Completed Operations Aggregate .1 The policy shall be endorsed to have the General Aggregate apply to this Project only. .2 Products and Completed Operations insurance shall be maintained on an occurrence basis without interruption from the date of commencement of the Work for a minimum period of at least three (3 ) year(s) after either 90 days following Substantial Completion or fmal payment, whichever is earlier. .3 The Contractual Liability insurance shall include coverage sufficient to meet the obligations in Section 3.18 of A201 § 8.1.3 Automobile Liability (owned, non -owned and hired vehicles) for bodily injury and property damage: $1,000,000 Each Accident for bodily injury liability including sickness, disease or death and property damage liability because of damage to or destruction of property of others, including loss of use thereof arising out of the operation of automobiles. § 8.1.4 Other coverage: $1,000,000 for claims involving damages to a person as a result of an offense directly or indirectly related to employment of such person by the Construction Manager or another employee. $ ,000,000 for claims for damages insured by personal injury liability coverage (included and . defined in the Commercial General Liability Insurance policy) which are sustained (1) by a person as a result of an offense directly or indirectly related to employment of such person by the - Construction Manager or (2) by another person. In addition, the Construction Manager shall maintain an umbrella policy that provides excess limits over the primary layer, in an amount not less than $10,000,000. The Construction Manager shall ensure and require that Subcontractors of any tier have insurance coverage to cover bodily injury and property damage on all operations and all vehicles owned or operated by Subcontractors of all tiers in the amount of $1,000,000 per occurrence with a $2,000,000 aggregate limit. Also, the Subcontractors shall name the Construction Manager and the Owner as additional insureds and give at least thirty (30) days' notice of cancellation. As specified in Section 11 of the revised General Conditions. PROPERTY INSURANCE: .__ The Construction Manager shall purchase and maintain, in a company or companies lawfully authorized and admitted to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk "all- risk" or equivalent policy form to cover the course of construction upon the entire Work at the site and all materials or equipment furnished or installed by the Owner on the Project, in the amount of the initial GMP, plus value of subsequent Contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in the Contract Documents or until no person or entity other than the Owner has an insurable interest in the property required to be covered, whichever is later. This insurance shall include interests of the Owner, the Construction Manager. Subcontractors and Sub - subcontractors in the Proiect. This insurance shall insure against the perils of fire and extended coverage and physical loss or damage, including earthquake, and shall provide "all risk" coverage for the interests of the Owner, the Construction Manager and Subcontractors as named insureds, as their respective interests appear. Upon written request, the Construction Manager will provide a copy of its policy to the Owner. Each loss may be subject AIA Document Al21 " CMc• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. AN rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 28 110 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the \aw. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/512009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • to a deductible of at least $1,000 but not more than $10,000, fifty percent (50%) of which shall be reimbursable as a Cost of the Work, and the remainder shall be the responsibility of the Construction Manager. The policy shall be endorsed to allow complete or partial occupancy by . the Owner before or after Substantial Completion without the insurer's approval. This property insurance shall be on an "all- risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, • collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Architect's and Construction Manager's services and expenses required as a result of such insured loss. If the Owner finds it necessary to occupy or use a portion orportions of the Work prior to Substantial Completion thereof, such occupancy or use shall not cause this insurance to be , canceled or lapse on account of such partial occupancy or use. Consent of the Construction Manager and of the insurance company or companies to such occupancy or use shall notbe unreasonably withheld. This property insurance shall cover portions of the Work stored off the site, and also portions of the. Work in transit. All tools and equipment of the Construction Manager and Subcontractors of any tier not intended as part of the construction or installation of the Work will be the sole responsibility of the Construction Manager. . . (If Umbrella Excess Liability coverage is required over the primary insurance or retention, insert the coverage , limits. Commercial General Liability and Automobile Liability limits may be attained by individual policies or - by a combination of primary policies and Umbrella and/or Excess Liability policies. If Project Management Protective Liability Insurance is to be provided state the limits here.) . . § 8.2 INSURANCE REQUIRED OF THE OWNER § `� Pr I . . Deductible Per Occurrence • - Aggregate Deductible . § 8.3 PERFORMANCE BOND AND PAYMENT BOND § 8.3.1 The Construction Manager shall (Insert "shall" or "shall not ") furnish bonds from a surety company , acceptable to the Owner, admitted and licensed in the State of Washington covering faithful performance of the Contract and payment of obligations arising thereunder. Bonds may be obtained through the Construction Manager's usual source, and the cost thereof shall be included in the Cost of the Work. The amount of each bond shall be equal to one hundred percent ( 100 %) of the :Cast -SumGMP plus sales tax, pursuant to RCW 39.08, "Contractor's Bond." § 8.3.2 The Construction Manager.shall deliver the required bonds to the Owner at least three, days before the commencement of any Work at the Project site and within ten (10) days of entering into an Amendment- - - 0 AIA Document Al21 T" CMc• 2003 and AGC Document 565. Copyright 01991 "and 2003 by The American Institute of Architects and The Associated General . Init. Contractors of America. Al rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 29 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 1 maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 21212009 under Order No. 1000354960 1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • 6 8.3.3 The Construction Manager shall require each Subcontractor'that is awarded a subcontract bid package • in excess of $300,000 to provide a payment and performance bond from a surety company acceptable to the Owner and the Construction Manager, admitted and licensed in the State of Washington from, each in the full amount of the subcontract sum, pursuant to RCW 39.10 and RCW 39.08. The Construction Manager may require a performance and payment bond from any other Subcontractor. provided that such requirement is set forth in the subcontract bid documents. Within ten (10) days of entering into a subcontract, and before any payment is due, the Subcontractor on each subcontract bid package shall deliver copies of the bonds to the Owner and to the Architect. ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 DISPUTE RESOLUTION § 9.1.1 During both the Preconstruction and Construction Phases, Claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Sections 4.3 through 4-6 -4.7 of A201TM- 1997, as revised, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation or arbitration. § 9.2 OTHER PROVISIONS § 9.2.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning.as those in A201TM -1997, General Conditions of the Contract for Construction, as revised. § 9.2.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the otherdocuments incorporated herein by reference, represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. § 9.2.3 OWNERSHIP AND USE OF DOCUMENTS Article 1.6 of A201T"--1997 shall apply to both the Preconstruction and Construction Phases. § 9.2.4 GOVERNING LAW The Contract shall be governed by the internal law of the place where the Project is located, except that choice- of -law provisions shall not apply. § 9.2.5 ASSIGNMENT The Owner and Construction Manager respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Section 13.2.2 of A201TM -1997, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. $ 9.2.6 PROJECT INFORMATION The Construction Manager and all Subcontractors shall submit Project information required by the state Capital Projects Advisory Review Board. ARTICLE 10 TERMINATION OR SUSPENSION • § 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE • § 10.1.1 Prior to execution by both parties of an Amendment No. 1 establishing the Guaranteed Maximum Price for a Component, the Owner may terminate this Contract for that Component at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Section 14.1.1 of A201TM -1997. The Owner's termination may apply to any or all Components for which Amendments have not been executed. If the Owner's termination occurs before the parties have executed. any Amendment, the entire Contract may be terminated. If the Owner's termination occurs after the parties have executed an Amendment but before the parties have executed all Amendments, the Contract will be terminated only for Components for AIA Document Al21 TM CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 30 • reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31 :28 on 212/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) . . • III . . which Notwithstanding n the Owner shall Amendments have not been executed. otwtthstandtng anything herein to the contrary, th O 11 maintain the right to terminate for convenience as described in Section 14.1.1 of A201T".1997. § 10.1.2 If the Owner or Construction Manager terminates this Contract for one or more Components pursuant to this Section 10.1 prior to commencement of the Construction Phase for these Components, the Construction Manager shall be equitably compensated for Preconstruction Phase Services reasonably and necessarily • performed on the terminated Components prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Section 4.1.1 of this Agreement • for these terminated Components. Performance of non - terminated Components will not be affected by such a termination, and no change in the Construction Manager's Preconstruction compensation or GMP for non- . terminated Components will occur thereby. § 10.1.3 If the Owner or Construction Manager terminates a Component of this Contract pursuant to this Section _ 10.1 atter-before commencement of the Construction Phase but after the Owner has authorized Work pursuant to Section 2.3.1.2, the Construction Manager shall, in addition to the compensation provided in Section 10.1.2, be paid an amount calculated as follows: .1 Take the Cost of the Work for that Component incurred by the Construction Manager. .2 Add the Construction Manager's Fee computed upon the Cost of the Work for that Component to the date of termination at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work for that Component at the time of termination bears to a reasonable . estimate of the probable Cost of the Work for that Component upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase for that Component. .4 Adjust for statutory retainage in accordance with RCW 60.28. The Owner shall also pay the Construction Manager fair compensation to the extent permitted in Section 6.1 and not excluded by Section 6.2 of this Agreement, either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10.1.3.1. To the extent that the Owner elects to take legal • assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and . take all such steps, including the legal assignment of such subcontracts and other contractual rights of the • Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's written approval prior to the execution of an Amendment No. 1 shall contain provisions permitting assignment to the Owner as described above. If the Owner accepts such assignment, the Owner shall reimburse or indemnify the Construction Manager with respect to all costs arising under the subcontract, purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated. If the Owner elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and -the Owner shall pay the Construction Manager the costs necessarily incurred by the Construction Manager by reason of such termination. - - - . , - - § 10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE 1 Subsequent to execution by both parties of all contemplated Amendments No. 1, the Contract may be terminated as provided in Article 14 of A201T" -1997. § 10.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Section 14.1.3 of A201m- -1997 shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Sections 10.1.2 and 10.1.3 of this Agreement. ipi AIA Document Al21 TM CMc• 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 31 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 1 maximum extent possible under the law. This document was produced by AIA software at 23:31:26 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) 10.2.2 I n the event of such termination by the Construction Manager, paid to the Construction er, the amount to be S • • • § Y g p Manager under Section 14.1.3 of A201T"_1997 shall not exceed the amount the Construction Manager would have been entitled to receive under Sections 10.1.2 and 10.1.3 above, - - - - , . , - - _ • . _ - § 10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article 14 of A201T"_1997; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Section 14.3.2 of A201T"_1997 except that the term "cost of performance of the Contract" in that Section shall be understood to mean the Cost of the Work and the term "profit" shall be understood to mean the Construction Manager's Fee as described in 1 Sections 5.1.1 and--57-14-of this Agreement. ARTICLE 11 OTHER CONDITIONS AND SERVICES This Agreement entered into as of the day and year first written above. OWNER CONSTRUCTION MANAGER (Signature) (Signature) 1" R. A. Zais, Jr., City Manager (Printed name and title) (Printed name and title) Date Date ATTEST ATTEST • • AIA Document Al21" CMc- 2003 and AGC Document 565. Copyright 0 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 32 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:31:28 on 212/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) . • • . . AMENDMENT NO. 4- TO AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER • Pursuant to Paragraph 2.2 of the Agreement, dated , 2009, between the City of Yakima (Owner) and (Construction Manager), for Capitol Theater (the Project), the Owner and Construction Manager establish a Guaranteed Maximum Price and Contract Time for the Wk- Component • as set forth below. ARTICLE I: GUARANTEED MAXIMUM PRICE - The Construction Manager's Guaranteed Maximum Price for the Work, including the estimated Cost of the Work as defined in Article 6 and the Construction Manager's Fee as defined in Article 5, is Dollars ($ ). This Price is for the performance of the Work in accordance with the Contract Documents listed and attached to this Amendment and marked Exhibits A through GP, as follows: Exhibit A Drawings, Specifications, addenda and General, Supplementary and other Conditions of the Contract on which the Guaranteed Maximum Price is • based, pages through , dated Exhibit B Allowance items, pages through , dated Exhibit C Assumptions and Clarifications made in preparing the Guaranteed Maximum Price, pages through , dated Exhibit D Completion schedule, pages " through , dated • Exhibit E Alternate prices, pages through , dated Exhibit F Unit prices, pages through , dated Exhibit G Specified General Conditions, pages through dated • III ARTICLE II: COMPONENT TIME • The date of Substantial Completion for the Component established by this Amendment and liquidated damages • for this Component are as follows. Any interim milestones are also specified: Milestone • • Substantial Completion Date Liquidated Damages per Calendar Day The Owner will assess, and the Construction Manager will be responsible, for liquidated damages in the above amounts for every calendar day beyond the Component Time that Substantial Completion of that Component is - - not achieved. Final Completion shall be achieved within ( • 1 days of the date of Substantial • Completion of all Components. • - ARTICLE III: LABOR BURDEN . The Construction Manager's Iabor burden shall be % times the actual wages paid any worker under Section 6.1.2.1. This rate is fully burdened, including all the wage -based costs, is subject to the Owner's audit and may be adjusted to reflect actual changes arising from new union agreements on June 1 of each year and to reflect actual changes in taxation and insurance on January 1 of each year. - ao AIA Document Al21 "' CMc- 2003 and AGC Document 565. Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the \aw. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) • OWNER CONSTRUCTION MANAGER (Signature) (Signature) (Printed name and title) (Printed name and title) Date Date ATTEST ATTEST • • • • • • • • �. - AIA Document Al21TM CMc- 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Init. Contractors of America. Ail rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized 2 reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the taw. This document was produced by AIA software at 23:31:28 on 2/2/2009 under Order No. 1000354960_1 which • expires on 5/512009, and is not for resale. User Notes: Yakima 15169439_3.DOC (3144662520) Attachment Fee Proposal Form • Attachment A -1 Yakima 15169439_3.DOC) Document A201 1997 General Conditions of the Contract for Construction for the following PROJECT: (Name and location or address) 1 Capitol Theater Project, Yakima, Washington • THE OWNER: (Name and address) 1 City of Yakima, 129 N. 2nd St., Yakima, Washington 98901 This document has important legal consequences. Consultation with an attorney THE ARCHITECT: is encouraged with respect to (Name and address) its completion or modification. This document has been approved and endorsed by The TABLE OF ARTICLES Associated General Contractors of America. • 1 GENERAL PROVISIONS 2 OWNER 3 CONTRACTOR 4 ADMINISTRATION OF THE CONTRACT • . 5 SUBCONTRACTORS 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS • 7 CHANGES IN THE WORK 8 TIME 9 PAYMENTS AND COMPLETION 10 PROTECTION OF PERSONS AND PROPERTY 11 INSURANCE AND BONDS 12 UNCOVERING AND CORRECTION OF WORK 13 MISCELLANEOUS PROVISIONS 14 TERMINATION OR SUSPENSION OF THE CONTRACT • AIA Document A201 TM - 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. An rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) INDEX Architect's Approvals (Numbers and Topics in Bold are Section Headings) 2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7. Architect's Authority to Reject Work Acceptance of Nonconforming Work 3.5.1, 4.2.6, 12.1.2, 122.1 . 9.6.6, 9.9.3, 12.3 Architect's Copyright Acceptance of Work 1.6 9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3, 12.3 Architect's Decisions Access to Work 4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 3.16, 6.2.1, 12.1 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2, 9.4, Accident Prevention 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4 4.2.3, 10 Architect's Inspections Acts and Omissions 4.2.2, 4.2.9, 4.3.4, 9.4.2,9.8.3, 9.9.2, 9.10.1, 13.5 3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 4.3.8, 4.4.1, 8.3.1, Architect's Instructions 9.5.1, 10.2.5, 13.4.2, 13.7, 14.1 3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1, 12.1, 13.5.2 Addenda Architect's Interpretations 1.1.1,3.11 4.2.11,4.2.12,4.3.6 Additional Costs, Claims for Architect's Project Representative 4.3.4, 4.3.5, 4.3.6, 6.1.1, 10.3 4.2.10 . Additional Inspections and Testing Architect's Relationship with Contractor 9.8.3, 12.2.1, 13.5 1.1.2, 1.6, 3.1.3, 32.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, ' Additional Time, Claims for 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3, 4.3.4, 4.3.7, 8.3.2 . 4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, ADMINISTRATION OF THE CONTRACT 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12, 3.1.3, 4, 9.4, 9.5 13.4.2, 13.5. , Advertisement or Invitation to Bid Architect s Relationship with Subcontractors _ 1.1.1 1. 12, 4. 2. 3 ,42A,42.6,9.6.3,9.6A,11.4.7_. 0 Aesthetic Effect Architect's Representations . 4.2.13, 4.5.1 9.4.2, 9.5.1, 9.10.1 Allowances Architect's Site Visits . 3.8 4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, All -risk Insurance 13.5 11.4.1.1 ' Asbestos Applications for Payment 10.3.1 4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, ' Attorneys' Fees 9.10, 11.1.3, 14.2.4, 14.4.3 3.18.1, 9.10.2, 10.3.3 Approvals Award of Separate Contracts 2.4, 3.1.3, 3.5, 3.10.2, 3.12, 4.2.7, 9.3.2, 13.4.2, 13.5 6.1.1, 6.1.2 Arbitration Award of Subcontracts and Other Contracts for 4.3.3, 4.4, 4.5.1, 4.5.2, 4.6, 8.3.1, 9.7.1, 11.4.9, Portions of the Work 11.4.10 5.2 Architect Basic Definitions 4.1 - 1.1 Architect, Definition of Bidding Requirements 4.1.1. 1.1.1, 1.1.7, 5.2.1, 11.5.1 , Architect, Extent of Authority Boiler and Machinery Insurance 2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6, 7.4, . 11.4.2 9.2, 9.3.1, 9.4, 9.5, 9.8.3, 9.10.1, 9.10.3, 12.1, Bonds, Lien 12.2.1, 13.5.1, 13.5.2, 14.2.2, 14.2.4 9.10.2 Architect, Limitations of Authority and Bonds, Performance, and Payment Responsibility 7.3.6.4, 9.6.7, 9.10.3, 1,1.4.9, 11.5 2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1, Building Permit 4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12, 4.2.13, 4.4, 3.7.1 5.2.1, 7.4, 9.4.2, 9.6.4, 9.6.6. Capitalization Architect's Additional Services and Expenses 1.3 40 2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4 Certificate of Substantial ,Completion Architect's Administration of the Contract 9.8.3, 9.8.4, 9.8.5 3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5 Certificates for Payment AIA Document A201" -- 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This MAO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 2 reproduction or distribution of this AIA' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) 4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1, 9.10.1, 4.3.4, 8.3.1, 10.3 9.10.3, 13.7, 14.1.1.3, 14.2.4 Conditions of the Contract Certificates of Inspection, Testing or Approval 1.1.1, 1.1.7, 6.1.1, 6.1.4 13.5.4 Consent, Written Certificates of Insurance 1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.10.2, 11.1.3 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2 Change Orders CONSTRUCTION BY OWNER OR BY 1.1.1, 2.4.1, 3.4.2; 3.8.2.3, 3.11.1, 3.12.8, 4.2.8, SEPARATE CONTRACTORS 4.3.4,4.3.9,5.2.3,7. 1,7.2,7.3,8.3.1,9.3.1.1,9.10.3, 1.1.4,6 11.4.1.2, 11.4.4, 11.4.9, 12.1.2 Construction Change Directive, Definition of Change Orders, Definition of 7.3.1 7.2.1 Construction Change Directives CHANGES IN THE WORK 1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.1.1 3.11, 4.2.8, 7, 8.3.1, 9.3.1.1, 11.4.9 Construction Schedules, Contractor's Claim, Defmition of 1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3 4.3.1 Contingent Assignment of Subcontracts Claims and Disputes 5.4, 14.2.2.2 3.2.3, 4.3, 4.4, 4.5, 4.6, 6.1.1, 6.3, 7.3.8, 9.3.3, Continuing Contract Performance 9.10.4, 10.3.3 4.3.3 Claims and Timely Assertion of- Claims Contract, Definition of 4.6.5 1.1.2 Claims for Additional Cost CONTRACT, TERMINATION OR 3.2.3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3.8, 10.3.2 SUSPENSION OF THE Claims for Additional Time 5.4.1.1, 11.4.9, 14 3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.3.2 Contract Administration Claims for Concealed or Unknown Conditions 3.1.3, 4, 9.4, 9.5 4.3.4 Contract Award and Execution, Conditions Relating Claims for Damages to 3.2.3,3:18,4.3.10, 6.1.1,8.3.3,9.5.1,9:6.7,10.3.3, 3.7.1,3. 10,52,6.1,11.1.3,11.4.6,115.1. 11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4 Contract Documents, The Claims Subject to Arbitration 1.1, i.2 4.4.1, 4.5.1, 4.6.1 Contract Documents, Copies Furnished and Use of Cleaning Up 1.6, 2.2.5, 5.3 3.15, 6.3 Contract Documents, Definition of Commencement of Statutory Limitation Period 1.1.1 13.7 Contract Sum Commencement of the Work, Conditions Relating to 3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2, 2.2.1,3.2.1,3.4.1,3 .7.1,3.10.1,3.12:6,4.3.5,5.2.1, 9.5.1.4, 9.6.7, 9.7, 10.3.2, 11.4.1, 14.2.4, 14.3.2 5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1, 11.1, 11.4.1, 11.4.6, Contract Sum, Definition of 11.5.1 9.1 - Commencement of the Work, Definition of Contract Time • 8.1.2 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8.1.1, 8.2, Communications Facilitating Contract 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1, 14.3.2 Administration Contract Time, Defmition of 3.9.1, 4.2.4 8.1.1 Completion, Conditions Relating to CONTRACTOR 1.6.1, 3.4.1, 3.11, 3.15, 4.2.2, 4.2.9, 8.2, 9.4.2, 9.8, 3 9.9.1, 9.10, 12.2, 13.7, 14.1.2 Contractor, Definition of COMPLETION, PAYMENTS AND 3.1, 6.1.2 9 Contractor's Construction Schedules Completion, Substantial 1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3 4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, Contractor's Employees 9.10.4.2, 12.2, 13.7 3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, Compliance with Laws 10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1, 1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, Contractor's Liability Insurance 4.6.4, 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4, 11.1 13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3 Contractor's Relationship with Separate Contractors Concealed or Unknown Conditions and Owner's Forces AIA Document A201 'm —1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Injt Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 3 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the , maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which . expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) 3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2.4 Damages, Claims for ' Contractor's Relationship with Subcontractors 3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2, 11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4 11.4.1.2, 11.4.7, 11.4.8 Damages for Delay Contractor's Relationship with the Architect '6.1.1, 8.3.3, 9.5.1.6, 9.7, 10.3.2 1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, Date of Commencement of the Work, Definition of 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2,4.1.3, 8.1.2 4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, Date of Substantial Completion; Definition of 9.4,9.5,9.7,9.8,9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12, 8.1.3 . 13.4.2, 13.5 Day, Definition of Contractor's Representations 8.1.4 1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.8.2 Decisions of the Architect Contractor's Responsibility for Those Performing the 4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, Work 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.11, 9.2, 9.4, 3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4 10 Decisions to Withhold Certification Contractor's Review of Contract Documents 9.4.1, 9.5, 9.7, 14.1.1.3 1.5.2, 3.2, 3.7.3 Defective or Nonconforming Work, Acceptance, Contractor's Right to Stop the Work Rejection and Correction of 9.7 2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2, 9.6.6, 9.8.2, Contractor's Right to Terminate the Contract 9.9.3, 9.10.4, 12.2.1, 13.7.1.3 4.3.10, 14.1 Defective Work, Definition of Contractor's Submittals 3.5.1 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, Definitions 9.8.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3, 11.1.3, 11.5.2 1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3, 4.1.1, Contractor's Superintendent 4.3.1, 5.1, 6.1.2, 7.2.1, 7.3.1, 7.3.6, 8.1, 9.1, 9.8.1. 3.9, 10.2.6 Delays and Extensions of Time Contractor's Supervision and Construction 3.23, 43.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1; Procedures 7.4.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2 - 1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, Disputes 6.2.4 ,7.1.3,7.3:4,7.3.6,8.2,10,12,14 4.1.4, 4.3, 4.4, 4.5, 4.6, 6.3, 7.3.8 _ Contractual Liability Insurance Documents and Samples at the Site 11.1.1.8, 11.2, 11.3 3.11 Coordination and Correlation Drawings, Definition of 1.2, 1.5.2, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1 1.1.5 Copies Fumished of Drawings and Specifications Drawings and Specifications, Use and Ownership of 1.6,2.2.5,3.11 • 1.1.1,1.3,2.2.5,3.11,5.3 Copyrights _ Effective Date of Insurance 1.6,3.17 8.2.2,11.1.2 Correction of Work Emergencies 2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1, 12.1.2, 4.3.5, 10.6, 14.1.1.2 12.2, 13.7.1.3 Employees, Contractor's Correlation and Intent of the Contract Documents 3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 1.2 10 .3,11.1.1,11.4.7,14.1,14.2.1.1 Cost, Definition of Equipment, Labor, Materials and 7.3.6 - 1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3:8.3, 3.12, 3:13, • Costs 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 2.4, 3.2.3, 3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2, 6.1.1, 6.2.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, ' 7.3.3.3, 7.3.6, 7.3.7, 7.3.8, 9.10.2, 10.3.2, 10.5, 11.3, Execution and Progress of the Work 11.4, 12.1, 12.2.1, 12.2.4, 13.5, 14 1.1.3, 1.2.1, 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4, 3.5, 3.7, Cutting and Patching 3.10, 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3, 6.2.2, 7.1.3, 6.2.5, 3.14 7.3.4, 8.2, 9.5, 9.9.1, 10.2, 10.3, 12.2, 14.2, 14.3 Damage to Construction of Owner or Separate Extensions of Time Contractors 3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3, 3.14.2, 6.2.4, 9.2.1.5, 10.2.1.2, 10.2.5, 10.6, 11.1, 7.4.1, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2 11.4, 12.2.4 Failure of Payment • Damage to the Work 4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6 3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.6, 11.4, 12.2.4 Faulty Work AIA Document A201T"' .. 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967,1970, 1976, 1987 and 1997 by The American Init . Institute of Architects. All rights reserved. WARNING: This AIA© Document is protected by U.S. Copyright Law and international Treaties. Unauthorized 4 reproduction or distribution of this AIA' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC - (2273420147) • (See Defective or Nonconforming Work) Insurance Companies, Settlement with Final Completion and Final Payment 11.4.10 410 4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, Intent of the Contract Documents 11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3 1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4 Financial Arrangements, Owner's Interest 2.2.1, 13.2.2, 14.1.1.5 13.6 Fire and Extended Coverage Insurance Interpretation 11.4 1.2.3, 1.4,4.1.1,4.3.1,5.1,6.1.2,8.1.4 -- GENERAL PROVISIONS Interpretations, Written 1 4.2.11,4.2.12, Governing Law Joinder and Consolidation of Claims Required 13.1 4.6.4 Guarantees (See Warranty) Judgment on Final Award Hazardous Materials 4.6.6 10.2.4, 10.3, 10.5 Labor and Materials, Equipment Identification of Contract Documents 1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 1.5.1 3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, Identification of Subcontractors and Suppliers 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2 5.2.1 Labor Disputes Indemnification 8.3.1 3.17, 3.18, 9.10.2, 10.3.3, 10.5, 11.4.1.2, 11.4.7 Laws and Regulations Information and Services Required of the Owner 1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 9.6.4,9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, 13.5.2, 13.6, 14 11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4 Liens Injury or Damage to Person or Property 2.1.2, 4.4.8, 8.2.2, 9.3.3, 9.10 4.3.8, 10.2, 10.6 Limitation on Consolidation or Joinder , Inspections 4.6.4 3.1.3, 3.3.3, 3:7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.2, Limitations, Statutes of 9.8.3, 9.9.2, 9.10.1, 12.2.1, 13.5 4.6.3, 12.2.6, 13.7 - Instructions to Bidders Limitations of Liability 1.1.1 2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.10, 3.17, 3.18, Instructions to the Contractor - 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.6.7, 9.10.4, 3.2.3, 3.3.1, 3.8.1, 4.2.8, 5.2.1, 7, 12, 8.2.2, 13.5.2 10.3.3, 10.2.5, 11.1.2, 11.2.1, 11.4.7, 12.2.5, 13.4.2 Insurance Limitations of Time 3.18.1, 6.1.1, 7.3.6, 8.2.1, 9.3.2, 9.8.4, 9.9.1, 9.10.2, 2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 9.10.5, 11 4.2.7, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, Insurance, Boiler and Machinery 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 11.4.2 9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, Insurance, Contractor's Liability 13.7, 14 11.1 _ Loss of Use Insurance Insurance, Effective Date of 11.4.3 8.2.2, 11.1.2. Material Suppliers Insurance, Loss of Use 1.6, 3.12.1, 4.2.4, 4.2.6, 5.2.1, 9.3, 9.4.2, 9.6, 9.10.5 11.4.3 Materials, Hazardous Insurance, Owner's Liability 10.2.4, 10.3, 10.5 11.2 Materials, Labor, Equipment and Insurance, Project Management Protective 1.1.3, 1.1.6, 1.6.1, 3.4, 3.5.1, 3.8.2, 3.8.23, 3.12, Liability 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 11.3 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2 Insurance, Property - Means, Methods, Techniques, Sequences and 10.2.5, 11.4 Procedures of Construction Insurance, Stored Materials 3.3.1, 3.12.10, 4.2.2, 4.2.7, 9.4.2 9.3.2, 11.4.1.4 Mechanic's Lien INSURANCE AND BONDS 4.4.8 11 Mediation Insurance Companies, Consent to Partial Occupancy 4.4.1, 4.4.5, 4.4.6, 4.4.8, 4.5, 4.6.1, 4.6.2, 8.3.1, 10.5 • 9.9.1, 11.4.1.5 Minor Changes in the Work AIA Document A201 TM - 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIM) Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 5 reproduction or distribution of this AlA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the � maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) 0 1.1.1, 3.12.8, 4.2.8, 4.3.6, 7.1, 7.4 MISCELLANEOUS PROVISIONS Owner's Right to Carry Out the Work 2.4, 12.2.4. 14.2.2.2 13 Owner's Right to Clean Up . Modifications, Definition of 6.3 1.1.1 Owner's Right to Perform Construction and to Modifications to the Contract Award Separate Contracts 1.1.1, 1.1.2, 3.7.3, 3.11, 4.1.2, 4.2.1, 5.2.3, 7, 8.31, 6.1 9.7, 10.3.2, 11.4.1 Owner's Right to Stop the Work - Mutual Responsibility 2.3 6.2 Owner's Right to Suspend the Work Nonconforming Work, Acceptance of 14.3 9.6.6, 9.9.3, 12.3 Owner's Right to Terminate the Contract - , Nonconforming Work, Rejection and Correction of 14.2 2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2, 9.9.3, 9.10.4, Ownership and Use of Drawings, Specifications 12.2.1, 13.7.1.3 and Other Instruments of Service Notice 1.1.1, 1.6, 2.2.5, 3.2.1, 3.11.1, 3.17.1, 4.2.12, 5.3 2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3.7.4, 3.12.9, 4.3, Partial Occupancy or Use 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 11.1.3, 9.6.6, 9.9, 11.4.1.5 11.4.6, 12.2.2, 12.2.4, 13.3, 13.5.1, 13.5.2, 14.1, 14.2 Patching, Cutting and Notice, Written 3.14, 6.2.5 2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, Patents 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 3.17 12.2.2, 12.2.4, 13.3, 14 Payment, Applications for Notice of Testing and Inspections 4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1;3.6.3, 9.7.1, 9.8.5, 13.5.1, 13.5.2 9.10.1, 9.10.3, 9.10.5, 11.1.3, 14.2.4, 14.4.3 Notice to Proceed . Payment, Certificates for 8.2.2 4.2.5,4.2.9,9.3.3, 9.5,9.6.1,9.6.6,9.7.1,9.10.1,'' el Notices, Permits, Fees and 9.10.3, 13.7, 14.1.1.3, 14.2.4 2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2 Payment, Failure of • Observations, Contractor's 4:3:6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6 1.5.2, 3.2, 3.7.3, 4.3.4 Payment, Final Occupancy 4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 2.2.2, 9.6.6, 9.8, 11.4.1.5 11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3 Orders, Written Payment Bond, Performance Bond and 1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5 13.5.2, 14.3.1 Payments, Progress OWNER 4.3.3, 9.3, 9.6,9.8.5, 9.10.3, 13.6, 14.2.3 2 - PAYMENTS AND COMPLETION Owner, Definition of 9 2.1 - Payments to Subcontractors • Owner, Information and Services Required of the 5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4, 9.6.7, 11.4.8, 2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 14.2.1.2 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, PCB '11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4 10.3.1 Owner's Authority - Performance Bond and Payment Bond -, 1.6, 2.1.1, 2.3, 2.4, 3.4.2, 3.8.1, 3.12.10, 3.14.2, 7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5 4.1.2, 4.1.3, 4.2.4, 4.2.9, 4.16, 4.4.7, 5.2.1, 5.2.4, Permits, Fees and Notices 5.4.1, 6.1, 6.3, 7.2.1, 7.3.1, 8.2.2, 8.3.1, 9.3.1, 9.3.2, 2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2 9.5.1, 9.9.1, 9.10.2, 10.3.2, 11.1.3, 11.3.1, 11.4.3, PERSONS AND PROPERTY, PROTECTION 11.4.10, 12.2.2, 12.3.1, 13.2.2, 14.3, 14.4 OF Owner's Financial Capability 10 2.2.1, 13.2.2, 14.1.1.5 Owner's Liability Insurance Polychlorinated Biphenyl 11.2 • 10.3.1 Owner's Loss of Use Insurance Product Data, Definition of 11.4.3 - 3.12.2 _ • Owner's Relationship with Subcontractors Product Data and Samples, Shop Drawings 1.1.2, 5.2, 5.3, 5.4, 9.6.4, 9.10.2, 14.22 3.11,3.12,4:2.7 AIA Document A201 — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 6 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the , maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) Progress and Completion 10.2, 10.6 • 4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4 Safety Precautions and Programs Progress Payments 3.3.1, 4.2.2, 4.2.7, 5.3.1, 10.1, 10.2, 10.6 4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3 Samples, Definition of Project, Definition of the 3.12.3 1.1.4 Samples, Shop Drawings, Product Data and Project Management Protective Liability 3.11, 3.12, 4.2.7 Insurance - Samples at the Site, Documents and 11.3 3.11 Project Manual, Definition of the Schedule of Values 1.1.7 9.2, 9.3.1 Project Manuals Schedules, 2.2.5 1.4.1.2, 3.10, 3.Construction12.1, 3.12.2, 4.3.7.2, Project Representatives 6.1.3 4.2.10 Separate Contracts and Contractors Property Insurance . 1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1, 10.2.5, 11.4 11.4.7, 12.1.2, 12.2.5 PROTECTION OF PERSONS AND PROPERTY Shop Drawings, Definition of 10 3.12.1 Regulations and Laws . Shop Drawings, Product Data and Samples 1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 3.11, 3.12, 4.2.7 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, Site, Use of- 13.5.2,13.6, 14 - 3.13,6.1.1,6.2.1 Rejection of Work Site Inspections • 3.5.1, 4.2.6, 12.2.1 1.2.2, 3.2.1, 3.3.3, 3.7.1, 4.2, 4.3.4, 9.4.2, 9.10.1, Releases and Waivers of Liens 13.5 9.10.2 Site Visits, Architect s Representations 4.2.2, 4.2.9, 4.3.4, 9.42, 9.5.1, 9.9.2, 9.10:1, 13.5. 1.52, 3.5.1, 3.12.6, 62.2, 82.1,9.3.3, 9.4.2, 9.5.1, Special Inspections and Testing _9.8.2, 9.10.1 4.2.6, 12.2.1, 13.5 Representatives Specifications, Definition of the 2.1.1, 3.1.1, 3.9, 4.1.1, 4.2.1, 4.2.10, 5.1.1, 5.1.2, 1.1.6 13.2.1 Specifications, The Resolution of Claims and Disputes 1.1.1, 1.1.6, 1.1.7, 1.2.2,1.6, 3.11, 3.12.10, 3.17 4.4, 4.5, 4.6 Statute of Limitations Responsibility for Those Performing the Work 4.6.3, 12.2.6, 13.7 3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.13, 6.2, 6.3, 9.5.1, Stopping the Work 10 2.3, 4.3.6, 9.7, 10.3, 14.1 Retainage Stored Materials 9.3.1, 9.6.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3 6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4 Review of Contract Documents and Field Subcontractor, Definition of Conditions by Contractor 5.1.1 1.5.2, 3.2, 3.7.3, 3.12.7, 6.1.3 SUBCONTRACTORS Review of Contractor's Submittals by Owner and 5 Architect Subcontractors,. Work by 3.10.1, 3.10.2, 3.11, 3.12, 4.2, 5.2, 6.1.3, 9.2, 9.8.2 .- - ' 1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4, 9.3.1.2, .. Review of Shop Drawings, Product Data and 9.6.7 _ Samples by Contractor Subcontractual Relations 3.12 5.3,5.4,9.3.1.2 ,9.6,9.10 Rights and Remedies 14.1, 14.2.1, 143.2 1.1.2, 2.3, 2.4, 3.5.1, 3.15.2, 4.2.6, 4.3.4, 4.5, 4.6, . Submittals 5.3, 5.4, 6.1, 6.3, 7.3.1, 8.3, 9.5.1, 9.7, 10.2.5, 10.3, 1.6, 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 12.2.2, 12.2.4, 13.4, 14 9.3, 9.8, 9.9.1, 9.10.2, 9.10.3, 11.1.3 Royalties, Patents and Copyrights Subrogation, Waivers of 3.17 6.1.1, 11.4.5, 11.4.7 Rules and Notices for Arbitration Substantial Completion 4.6.2 4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, Safety of Persons and Property 9.10.4.2, 12.2, 13.7 AIA Document A201 TM - 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 7 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the , maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) 410 Substantial Completion, Definition of 9.8.1 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, Substitution of Subcontractors 13.7, 14 5.2.3, 5.2.4 Time Limits on Claims Substitution of Architect 4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6 4.1.3 ' Title to Work Substitutions of Materials 9.3.2, 9.3.3 3.4.2, 3.5.1, 7.3.7 UNCOVERING AND CORRECTION OF ' Sub - subcontractor, Definition of WORK 5.1.2 -12 Subsurface Conditions . ' Uncovering of Work 4.3.4 12.1 Successors and Assigns Unforeseen Conditions 13.2 4.3.4, 8.3.1, 10.3 Superintendent Unit Prices 3.9, 10.2.6 4.3.9, 7.3.3.2 Supervision and Construction Procedures Use of Documents 12.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 1.1.1, 1.6, 2.2.5, 3:12.6, 5.3 6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1, 9.4.2, 10, 12, 14 Use of Site Surety 3.13, 6.1.1, 6.2.1 , 4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2 Values, Schedule of Surety, Consent of 9.2, 9.3.1 9.10:2, 9.10.3 Waiver of Claims by the Architect Surveys 13.4.2 . 2.2.3 Waiver of Claims by the Contractor Suspension by the Owner for Convenience -- 4.3.10, 9.10.5, 11.4:7, 13.4.2 14.4 Waiver of Claims by the Owner Suspension of the Work 4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 11.4:5, 11.4.7, • 5.4.2, 14.3 . 12.2.2.1,13.4.2, 14.2.4 . Suspension or Termination of the Contract Waiver of Consequential Damages 4.3.6, 5.4.1.1, 11.4.9, 14 4.3.10, 14.2.4 Taxes Waiver of Liens 3.6, 3.8.2.1, 7.3.6.4 9.10.2, 9.10.4 Termination by the Contractor - Waivers of Subrogation 4.3.10, 14.1 '"6.1.1, 11.4.5, 11.4.7 .. Termination by the Owner for Cause Warranty 4.3.10, 5.4.1.1, 14.2 15,4.2.9,4.3.5.3,9 .3.3,9.8.4,9.9.1,9.10.4,12.2.2, Termination of the Architect 13.7.1.3 4.1.3 Weather Delays . Termination of the Contractor 4.3.7.2 -- -- 14.2.2 Work, Definition of TERMINATION OR SUSPENSION OF THE 1.1.3 CONTRACT Written Consent 14 .1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, Tests and Inspections 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2 3.1.3, 3.3.3,'4.2.2, 4.2.6, 4.2:9, 9.4.2, 9.8.3, 9.9.2, Written Interpretation s . 9.10.1, 10.3.2, 11.4.1.1, 12.2.1,13.5 4.2.11, 4.2.12, 4.3.6 . TIME . Written Notice 8 2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, Time, Delays and Extensions of 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 12.2.2, 12.2.4, 13.3, 14 7.4.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2 Written Orders Time Limits . 1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 13.5.2, 14.3.1 4.2, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, a i . AIA Document A201"' — 1997. Copyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA ®Document is protected by U.S. Copyright Law and international Treaties. Unauthorized 8 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I , maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) ARTICLE 1 GENERAL PROVISIONS § 1.1 BASIC DEFINITIONS § 1.1.1 THE CONTRACT DOCUMENTS The Contract Documents consist of the Agreement between Owner and Contractor (hereinafter the Agreement), Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the. Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect. Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as bidding requirements (advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor's bid or portions of Addenda relating to bidding requirements). In the event of a conflict or discrepancy among or in the Contract Documents, interpretation shall be governed in the following priority, with an Addendum to a Contract Document having precedence over the original document and later Addenda having precedence over earlier: .1 Agreement (revised Al21 -2003) (written amendments having precedence) .2 ' My Special Conditions .3 Any Supplementary Conditions .4 These revised General Conditions (A201 -1997) .5 Specifications .6 Schedules .7 Drawings (large -scale having precedence over small - scale, and written or computed dimensions having precedence over scaled dimensions). In the event that work is shown on Drawings but not contained in Specifications, the work as shown shall be provided at no change in the GMP or Component Time, according to specifications to be issued by the Architect that are consistent with and reasonably inferable from the Work shown on the Drawings. In the case of an inconsistency between Drawings and Specifications or within either Document, not clarified • by addendum, the better quality or greater quantity of Work shall be provided in accordance with the Architect's interpretation, without change in the Contract Sum. § 1.1.2 THE CONTRACT . The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Contractor, (2) between the Owner and a Subcontractor or Sub - subcontractor (although the Owner does not waive any third -party beneficiary rights it may otherwise have as to Subcontractors of any tier), (3) between the Owner and Architect or (4) between any persons or entities other than the Owner and Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties. § 1.1.3 THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute'the whole or a part of the Project. §1.1.4 THE PROJECT The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by separate contractors. § 1.1.5 THE DRAWINGS The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. AIA Document A201 — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American MIL Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any-portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. - User Notes: Yakima 15170848_2.DOC (2273420147) • § 1.1.6 THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. § 1.1.7 THE PROJECT MANUAL - • The Project Manual is a volume assembled for the Work which may include the bidding requirements, sample forms, Conditions of the Contract and Specifications. § 1.1.8 MANUFACTURERS SPECIFICATIONS Manufacturer's Specifications, recommendations or instructions for installing materials, equipment or appurtenances furnished as a part of this the Contract Documents shall govern unless in conflict with the Specifications for the project or unless local conditions prevent installation in the prescribed manner, in which case, the approval of the Architect shall be obtained before proceeding with this part of the work. If there is a conflict with the Manufacturer's instruction, dimensions, means of installation, attachment requirements, framing requirements, weatherproofing requirements or other recommendations and the Drawings or Specifications, the most stringent (considered to be the most costly) is intended and will be enforced. § 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS § 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. Mention in the Specifications or indication on the Drawings of articles, materials, equipment, operations or methods requires that the Contractor provide each item mentioned or indicated, of quality or subject to qualifications, noted; perform according to conditions stated, each operation prescribed; and provide therefore all labor, equipment and incidentals. § 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of. Work to be performed by any trade. • § 1.2.3 Unless otherwise stated in the Contract Documents, words which have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized - meanings. § 1.2.4 If there is any inconsistency in the Contract Drawings, or between the Contract Drawings and the Specifications, unless otherwise ordered in writing by the Architect or the Owner, the Contractor shall provide the better quality of, or the greater quantity of, work or materials. 41.2.5 Where the word "similar" or "typical" occurs on the drawings, it shall be used in this general sense and not as meaning identical or exact, and all details shall be worked out in relation to their location and their connection to other parts of the work. Where there is a question of intent, notify the Architect regarding interpretation. § 1.2.6 Where on an y Drawings a portion of the work is drawn out and the remainder is indicated in outline, the . drawn out parts shall apply also to other like portions of the work. Where ornament or other detail is indicated by starting only, such details'shall also apply to other similar parts of the work, to properly complete the work in full, unless specifically indicated otherwise. § 1.3 CAPITALIZATION § 1.3.1 Terms capitalized in these General Conditions include those which are (1) specifically defined, (2) the titles of numbered articles or (3) the titles of other documents published by the American Institute of Architects. AIA Document A201 T'" —1997. Copyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967,' 1970, 1976, 1987 and 1997 by The American init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 10 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) § 1.4 INTERPRETATION § 1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. § 1.4.2 Reference in the singular to an article, device, item or piece of equipment shall include the larger of the number of such articles indicated in the Contract Documents or the number required to complete the installation. § 1.5 EXECUTION OF CONTRACT DOCUMENTS § 1.5.1 The Contract Documents shall be signed by the Owner and Contractor. If either the Owner or Contractor or both do not sign all the Contract Documents, the Architect shall identify such unsigned Documents upon request. § 1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. By executing this Contract, the Contractor represents and acknowledges that the Contract Time is adequate for the performance of the Work, and that it has carefully examined the Contract Documents and the Project site, including any existing structures, and that it has satisfied itself as to the nature, location, character, quality and quantity of the Work, the labor, materials, equipment, goods, supplies, work, services and other items to be furnished and all other requirements of the Contract'Documents, as well as the surface conditions and other foreseeable matters that may be encountered at the Project site or affect performance of the Work or the cost or difficulty thereof, including but not limited to those conditions and matters affecting: transportation, access, local regulations, disposal, handling and storage of materials, equipment and other items; availability and quality of labor, water, electric power, utilities, drainage; availability and condition of roads; normal climatic conditions`and seasons, physical conditions at the Project site and the surrounding locality; topography and ground surface conditions, 'and equipment and facilities needed preliminary to and at all times during the performance of the .Work. The failure of the Contractor fully to acquaint itself with any such condition or matter shall not in any way relieve the Contractor from the responsibility for performing the Work in accordance with the Contract Documents and within the Component Time and the GMP. § 1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE § 1.6.1 The Drawings, Specifications and other documents, including those in electronic form, prepared by the Architect and the Architect's consultants are Instruments of Service through which the Work to be executed by the Contractor is described. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor, Sub - subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other documents prepared by the Architect or.the Architect's consultants, and unless otherwise indicated the Architect and the Architect's consultants shall be deemed the authors of them and will, subject to any right of the Owner, retain all common law, statutory and other reserved rights, in addition to the copyrights. All copies of Instruments of Service, except the Contractor's record set, shall be returned or suitably accounted for to the Architect, on request, upon completion of the Work. The Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are not to be used by the Contractor or any Subcontractor, Sub - subcontractor or material or equipment supplier on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner, Architect and the Architect's consultants. The Contractor, Subcontractors, Sub - subcontractors and material or equipment suppliers are authorized to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants appropriate to and for use in the execution of their Work under the Contract Documents. All copies made under this authorization shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants. Submittal or distribution to meet official regulatory requirements or AIA Document A201'" —1997. Copyright 01911, 1915, 1918, 1925, 1937, 1951, 1958, 1961,1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent, possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • . . • f or other purposes in connection with this Project is not to be construed as publication in derogation of the Architect's or Architect's consultants' copyrights or other reserved rights. ARTICLE 2 OWNER . § 2.1 GENERAL § 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular m number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or . authorization. Except as otherwise provided in Section 4.2.1,•the Architect does not have such authority. The term "Owner" means the City Council Owner or its the-Owner-Ls authorized representative. , § 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic's lien - rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner's interest therein. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner's interest therein. . § 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER § 2.2.1 The Owner shall, at the written request of the Contractor, prior to commencement of the Work and thereafter, furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor. § 2,2.2 Except for permits and fees, including those required under Section 3.7.1, which are the responsibility of. , . . ,: - . :: _ • the Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. § 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project to the extent that such information is readily available to the Owner, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. The Contractor • shall assume that the locations of any underground or hidden utilities, underground tanks, plumbing or electrical runs indicated in the surveys or Contract Documents are shown in approximate locations, but the Contractor is responsible for making all utility location checks. • § 2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner upon written request with reasonable promptness. Any other information or services relevant to the Contractor's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Contractor of a written request for such information or services. § 2.2.5 _ • - : • - • - . . • . - . . _ D : _ .. - • , The Contractor will be responsible as a Cost of the Work for the printing costs for Subcontractor bid packages (including those on which it bids) and will furnished, free of charge, such copies of Drawings and Project Manuals to the Owner and Architect as are reasonably necessary f ° e o fth e W § 2.3 OWNER'S RIGHT TO STOP THE WORK § 2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract 1 Documents as required by Section 12.2 or persistently or materially fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the • 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 12 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the i - maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC . . (2273420147) Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3. § 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK § 2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven -day period after receipt of written notice from the Owner to commence and continue to make reasonable progress toward the correction of such default or neglect with diligence and promptness, the Owner may after such seven -day period _' - _ • • - . • - _ _ • : • - - . • _ _ _ _ . _ _ - - • -- _ -• _ • - - .. - -: -: • - : -: -- ..- - - -- • • - - .• - -' , .• • : ,and without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be - issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and compensation for the Architect's additional services and expenses made necessary by such default, neglect or failure. The right of the Owner to correct the Work pursuant to this Section shall not give rise to any duty on the part of the Owner to exercise this right for the benefit of others. A -�et, If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. ARTICLE 3 CONTRACTOR § 3.1 GENERAL § 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized representative. § 3.1.2 The Contractor shall perform the Work in accordance with the. Contract Documents and submittals approved pursuant to Section 3.12. • § 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. • 3.1.4 The Contractor shall be and o erate as an inde s endent contractor in the I erformance of the Work and shall have complete control over and responsibility for all personnel performing the Work. The Contractor is not authorized to enter into any agreements or undertakings for or on behalf of the Owner or to act as or be an agent or employee of the Owner. • § 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 3.2.1 Since the Contract Documents are complementary, before starting each portion of the Work, the Contractor shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall - take field measurements of and verify any existing conditions, including all general reference points and any interfering existing conditions, related to that portion of the Work and shall observe any conditions at the site affecting it and shall carefully compare such field measurements and conditions and other information known to the Contractor with the Contract Documents before commencing such activities. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Program Manager and the Architect as a request for information in such form as the Architect may require. • § 3.2.2 Any design errors or omissions noted by the Contractor during this review shall be reported promptly to 1 the Owner and the Architect, but it is recognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. The Contractor is not required to ascertain that the Contract Documents are in accordance AlA Document A201 TM - 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • el • • . - with applicable laws, statutes, ordinances, building codes, and rules and regulations, but any nonconformity discovered by or made known to the Contractor shall be reported promptly to the Owner and Architect. The` Contractor shall comply with all applicable Federal, state, county and city laws, ordinances and regulations. § 3.2.3 If the Contractor believes that additional cost or time is involved because of any design errors or omissions noted by the Contractor during this review, or clarifications or instructions issued by the Owner or • the Architect in response to the Contractor's notices or requests for information pursuant to Sections 3.2.1 and 3.2.2, the Contractor shall make Claims provided in Sections 4.3 through 4.74.3.6 and 4.3.7. If the Contractor fails to perform the obligations of Sections 3.2.1 and 3.2.2, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. The . Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the - Contract Documents unless the Contractor recognized or reasonably should have recognized such error, . inconsistency, omission or difference and knowingly failed to report it to the Program Manager and the Architect. If the Contractor performs any construction activity it knows or reasonably should have known ' involves an error, inconsistency or omission in the Contract Documents or reports referenced therein without such notice to the Owner and the Architect, the Contractor shall be responsible for such performance and shall • bear the attributable costs for correction. The Construction Manager is not a design professional and is providing these services in its capacity as a general contractor. § 3.2.4 The Contractor will participate in recommending necessary investigations of hidden or subsurface conditions. The results of these investigations will be available for the convenience of the Contractor but are - not a part of the Contract Documents. The Contractor may rely upon such investigation results with the • understanding that the conditions indicated will be representative of those existing at the site and that, if • unforeseen developments occur, they will be addressed by the Contract Documents. The Contractor is- . . responsible for reasonably interpreting the information and extrapolating beyond the testing location, including each individual boring, test pit or other location. • - • 3.2.5 The Contractor shall do no work exce It Work related to means and methods and tem I or. controls without applicable Drawings, Specifications, or written modifications or, where required, Shop Drawings, Product Data, or Samples, unless instructed to do so in writing by the Architect and the Owner. § 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES • - _ • § 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, assembly details and procedures and for coordinating all portions of the Work under the Contract, . unless the Contract Documents give other specific instructions concerning these matters. The Contractor shall review any such specific instructions and any construction or procedure specified in the Contract Documents, shall advise the Architect (a) if the specified instruction or procedure deviates from what the Contractor considers to be good construction practice, {b) if following the instruction or procedure will affect . any warranties, or (c) if the Contractor objects to the instruction or procedure, and shall propose alternative - instructions or procedures acceptable to the Contractor, for which no increase in the GMP.or'Component Time will be made. If the Contract Documents give specific instructions conceming construction means, methods, techniques, assembly details, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof - and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the • 1 Architect. If the Contractor is then instructed by the Owner to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for.any resulting - loss or damage. - AIA D ocum ent A201 T"' — 1997. Copyright ® 1911 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architects. All rights reserved. WARNING: This AIA® Doc ument is protected by U.S. Copyright Law and International Treaties. Unauthorized 14 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 1 maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • § 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractors employees, • Subcontractors of any tier and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. § 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. Under no conditions shall a section of Work proceed prior to preparatory work having been completed, cured, dried and otherwise made satisfactory to receive the related work. Responsibility for timely installation of all materials and equipment rests solely with the Contractor, who shall maintain coordination control at all times. The Contractor shall ensure that the responsible Subcontractor has carefully examined all preparatory work that has been executed to receive its work and has notified the Contractor (who shall notify the Architect in writing) of any defects or imperfections in preparatory work that.will, in any way, affect satisfactory completion of the Work. The lack of such notification shall constitute an acceptance of preparatory work and a waiver of any later claim or defect therein. $ 3.3.4 The Contractor shall perform such detailed examination, inspection and quality surveillance of the Work as will ensure that the Work is progressing and is being completed in strict accordance with the Contract Documents, including the then current issue of the Drawings and Specifications. The Contractor shall be responsible for examination, inspection and quality surveillance of all Work performed by any Subcontractor of anv tier. The Contractor shall determine when it is necessary to perform, and shall perform, tests (in addition to those requested by the Owner or required by the Specifications or any other provision of the Contract Documents) to verify its inspections or to ensure that the Work is being completed in strict accordance with the Contract Documents. Inspections by or on behalf of the Owner shall not constitute approval of the Work. • 3.3.5 The Contractor shall • lan and la out all Work in advance of o • erations so as to coordinate all work without delay or revision. The Contractor shall establish and maintain existing lot lines, restrictions and bench : . marks. The Contractor shall establish and maintain all other lines, levels and bench marks necessary for the execution of the Work and take necessary steps to prevent their dislocation or destruction. The Contractor shall employ a professional land surveyor registered in the State of Washington to initially lay out and be responsible for the accuracy of the Work and to create and submit to the Owner an as-built survey and accurate utility as- builts for use by the Owner in developing easements. § 3.4 LABOR AND MATERIALS § 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § 3.4.2 After the applicable Amendment has been executed, the Owner and the Architect may consider a written request for the substitution of material or products in place of those specified in the Contract Documents only under exceptional circumstances or as described in and following the procedures of the Contract Documents. The written request must include the specifications for the material or product and any proposed change in the Contract Sum or Component Time. The Contractor may make substitutions only with the written consent of the Owner, after evaluation by the Architect and in accordance with a Change Order. By requesting a substitution, the Contractor represents that it has personally investigated the proposed material or product and determined that it is equal or better in all respects to that specified, that the same or better warranty will be provided for the substitution, that complete cost data, including all direct and indirect costs of anv kind, has been presented, that it waives any other known or unknown Claim for an increase in the Contract Sum or Component Time, that it has coordinated with affected Subcontractors and will not impact other parts of the Work, and that it will coordinate the installation of the substitute if accepted and make all associated changes in the Work. The Contractor will be responsible for the reasonable costs of any time the Program Manager and/or the Architect expends in reviewing a substitution request. Neither the Owner the Program Manager nor the Architect will be responsible for the performance of the substituted product. AIA Document A201 " - 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • § 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract, including observance of drug testing and all smoking, tobacco, drug, alcohol, parking, safety, weapons, sexual harassment and other rules governing the conduct of personnel at the Project site. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. The Contractor shall remove from the Work and Work site any employee or other person the Owner reasonably considers objectionable, without change in the Contract Sum or Component Time. Without limiting the generality of the foregoing, the Contractor shall ensure by appropriate provisions in each • subcontract agreement that the Contractor may remove from the Work and Work site any Subcontractor or Subcontractor's employee who has engaged in inappropriate conduct. At no change to the GMP or Component Time, the Contractor shall remove from the Work and Work site any employee or other person pursuant to this Section. Failure to comply with these requirements is grounds for immediate termination of the Agreement for cause. § 3.4.4 Prevailing Wages. .1 Pursuant to RCW 39.12, "Prevailing Wages on Public Works," no worker, laborer, or mechanic employed in the performance of any part of the Work shall be paid less than the "prevailing rate of wage" (in effect as of the date that bids are due) as determined by the'lndustrial Statistician of the Department of Labor and Industries. The schedule of the prevailing wage rates for the locality or localities where this contract will be performed is attached to the executed contract and made a part of the Contract Documents by reference as though fully set forth herein. To the extent that there is any discrepancy between the attached schedule ofprevailing wage rates and the published rates as are applicable under WAC 296 -127 -011, the applicable published rates shall apply at no increase to the Contract Sum. It is the Contractor's responsibility to ensure that the correct prevailing wage rates be paid. The Contractor shall provide the respective - Subcontractors with a schedule of the applicable prevailing wage rates. Questions relating to prevailing wage data should be addressed to the Industrial Statistician '. upon request. 4110 Mailing Department of Labor and Industries • Address: Prevailing Wage Office PO Box 44540 Olympia, WA 98504 • Telephone: (360) 902 -5335 • Fax: • (360) 902 -5300 .2 Pursuant to RCW 39.12.060, in case any dispute arises as to are the prevailing rates of wages for work of a similar nature, and such dispute cannot be adjusted by the parties in interest, including labor and management representatives, the matter shall be referred for arbitration to the director of the Department of Labor and Industries of the state, and his or her decision therein shall be final and conclusive and binding on all parties involved in the dispute. - .3 The Contractor shall defend, indemnify and hold the Owner harmless, including attorneys' fees, from any violation or alleged violation by the Contractor or any Subcontractor of any tier of RCW 39.12 ( "Prevailing Wages on Public Works ") and RCW 51 ( "Industrial Insurance "),, • including without limitation RCW 51.12.050. . • 3.4.5 The Contractor shall com .1 with all a . ' licable ' rovisions of RCW 49.28 "Hours of Labor" . • 3.4.6 Pursuant to RCW 49.70 'Worker and Communi Ri t to Know Ac " and WAC 296 -62 -054 et se.. the Contractor shall provide the Owner copies of and have available at the Project Site a workplace survey or material safety data sheets for all "hazardous" chemicals under the control or use of Contractor or any Subcontractor of any tier at the Project Site. Contractor shall not be entitled to any additional Component Time or compensation arising from its failure or alleged failure to comply with this statute or regulation.. • AIA DocumentA2OlTM - -1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 16 reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the • maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) 3.4.7 § Certified Asbestos -Free and Lead -Free Products: All products and materials incorporated into the Project as part of the Work shall be certified as "asbestos -free" and "lead -free" by United States standards. At the completion of the project the Contractor shall submit Certifications of Asbestos -Free and of Lead -Free Materials certifying that all materials and products incorporated into the Work meet the requirements of this section. § 3.4.8 The Contractor shall be responsible for labor peace on the Project and shall at all times use its best efforts and exercise its best judgment as an experienced contractor to adopt and implement policies and practices designed to avoid work stoppages, slowdowns, disputes or strikes where reasonably possible and practical under the circumstances, and shall at all times maintain Project -wide labor harmony. § 3.4.9 Materials shall conform to the manufacturer's standards in effect at the date of execution of the Contract Documents and shall be installed in strict accordance with the manufacturer's instructions, specifications and directions. The Contractor shall, if required in writing by the Owner and Architect, furnish satisfactory evidence regarding the kind and quality of any materials identifying thereon the source, and warranting their quality and compliance with the Contract Documents. . • • 3.4.10 Forei i • i se will not be acce . ted b the Owner for use on the I ro'ect. § 3.5 WARRANTY § 3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, 1 that the Work will be performed in a skillful and workmanlike manner, free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be-is considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, Ask modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner or Architect, the Contractor shall furnish IIP satisfactory evidence as to the kind and quality of materials and equipment. The Contractor is not relieved of its general warranty obligations by the specification of a particular product or procedure in the Contract Documents. Warranties in the Contract Documents shall survive completion, acceptance and final payment. ' § 3.5.2 The Contractor shall collect, assign, and deliver to the Owner any specific written warranties given by others. § 3.5.3 Warranty language shall comply with the Contract Documents and shall be submitted to the Owner and Architect along with the applicable Submittal for the warranted material or equipment. § 3.6TAXES § 3.6.1 The Contractor shall pay all taxes, including sales, consumer, use, B & 0, income, and similar taxes for • the Work provided by the Contractor which are legally enacted when bids are received negotiations eencluded, whether or not yet effective or merely scheduled to go into effect. The only taxes excluded from the Contract Sum or separately reimbursable are sales taxes. • § 3.7 PERMITS, FEES AND NOTICES § 3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building-permit-and-permits listed in the Agreement or Special Conditions, and- including but not limited to all Subcontractor permits and fees, plan check fees for deferred submittals, the application fees and review fees for any and all shop drawings or bidder designed systems, any inspection fees not covered by the initial building permit fee, including reinspection fees, and governmental fees, Department of Labor and Industries fees, renewals and penalties, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded other than those that the Specifications explicitly indicate the Owner is AIA Document A201 TM - 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American (nit Institute of Architects. Al) rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 - On 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • • • • providing. The Owner will not pay, and the Contractor will be responsible for and will not be reimbursed for, license fees or any renewals and penalties. § 3.7.2 The Contractor shall comply with and.give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work. § 3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance therewith, the Contractor shall promptly . notify the Architect and Owner in writing, and necessary changes shall be accomplished by appropriate Modification. • § 3.7.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Architect and Owner, the Contractor shall assume 1 appropriate- responsibility for such Work and shall bear the costs attributable to correction. • § 3.8 ALLOWANCES § 3.8.1 The Contractor shall include in the Contract Sum all•allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has made reasonable and timely written objection. § 3.8.2 Unless otherwise provided in the Contract Documents: • . .1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site • :.i ,.': • ; and all required taxes, less applicable trade discounts; • .2 Contractor's costs for unloading and handling at the site, labor, installation costs, overhead; • .' '.. • . : ' ' ' • ' :',-. ® profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; .3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section 3.8.2.1 and (2) changes in Contractor's costs under Section 3.8.2.2. § 3.8.3 Materials and equipment under an allowance shall be selected by the in sufficient time to avoid delay in the Work. § 3.9 SUPERINTENDENTMANAGEMENT AND SUPERVISION - . § 3.9.1 The Contractor shall employ a competent, experienced superintendent and necessary assistants as identified in its RFP who shall be in attendance at the Project site during performance of the'Work. The superintendentshall represent the Contractor, and communications given to the superintendent shall be as • binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. The Owner shall have the right to approve the superintendent and project manager as well as any field engineers, which approvals shall not unreasonably be withheld. , §3.9.2 The superintendent, the project manager and any field engineers shall be employees of the Contractor. _ The superintendent or field engineers shall remain on the Project site whenever Subcontractors of any tier are present and not less than eight hours per day, five days per week, unless the job is closed down due to a legal holiday, a general strike, conditions beyond the control of the Contractor, termination of the Contract in accordance with the Contract Documents or unless Final Completion is attained. Neither the superintendent nor the Contractor's project manager nor anv other individual identified in the Contractor's RFP response shall •be changed without the approval of the Owner; which shall not be given prior to receipt of a resume.in an acceptable form of the proposed substitute and shall not be unreasonably withheld. The superintendent shall not be employed on any other project during the course of the Work. The Contractor shall also have available ill AIA Document A201 TM - 1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 18 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC • (2273420147) • • for work on site ex skilled employees, p III enenced, skl such as carpenters, laborers, erection specialists, etc., to perform work as needed. . § 3.9.3 Upon execution of an Amendment, the Contractor shall furnish to the Architect and Owner: .1 A chain -of- command organizational chart which includes all supervisory personnel, including the project manager, the project engineer and the superintendent, assistant superintendent and lead foreman, that the Contractor intends to use on the Work. The chart shall specify any limits of authority for each person, including but not limited to his/her ability to speak for and bind the Contractor, as well as any limits on decision - making authority with respect to specific dollar values, Component Time, and issues affecting quality of the Work. .2 A list of telephone numbers for all key personnel of the Contractor and its principal subcontractors for purposes of contacting personnel after hours in the event of an emergency. The list shall be periodically updated as necessary to ensure the Owner has the most current information. § 3.10 CONTRACTORS CONSTRUCTION SCHEDULES . § 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for, the Owner's and Architect's information a preliminary Contractor's construction schedule for the Work consistent with the requirements of the Contract Documents. The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for • expeditious and practicable execution of the Work. § 3.10.2 The Contractor shall prepare and keep current, for the Architects approval, a schedule of submittals _ which is coordinated with the Contractor's construction schedule and allows the Architect and the Owner reasonable time to review submittals in accordance with the Specifications and submittal procedures . The • Contractor should expect a response time of at least fourteen (14) days for the Architect's review and at least twenty -one (21) additional days for review by the Architect's consultants. Complex, inter - related or multiple submittals will take Longer.' Neither the Owner nor the Architect can guarantee response times from governmental authorities, such as permitting agencies or review of any required deferred submittals: § 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect and shall promptly notify the Owner of any substantial deviations from those schedules. The Contractor shall not be entitled to any adjustment in the Component Time, the Construction Schedule, or the GMP, or to any additional payment of any sort by reason of the loss or use of any float time including time between the Contractor's anticipated completion date and end of the Component Time, whether or not the float time is described as such on the Construction Schedule. § 3.11 DOCUMENTS AND SAMPLES AT THE SITE § 3.11.1 The Contractor shall maintain at the site for the Owner and update at least weekly one record copy of the Drawings, Specifications, Addenda, Change Orders, Construction Change Directives, and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and the Owner and shall be delivered to the Architect for submittal to the Owner upon completion of the Work. The Contractor shall review and follow the standards ' referenced in the Specifications. The location of all existing or new hidden piping, valves, conduit, cabling and utilities, as located during the course of construction, shall be appropriately marked until the actual field location dimensions and coordinates are incorporated on the as-built drawings. and mechanical and electrical deviations and changes shall be included. The documents shall include all Architectural, Mechanical, Electrical, Structural and Civil as -built drawings, whether changes occur or not. These documents, as well as the approved permit set of plans, shall be available to the Architect and Owner at the site and reviewed with them on a weekly basis. Upon Final Completion of the Work, the Contractor shall transfer all as-built information in a clear and legible manner as described in the Contract Documents and in compliance with all requirements of AIA Document A201 —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American I Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) III local governmental entities and shall certify in writing that these documents reflect complete and accurate "as- built" conditions and shall deliver the following in a clear, clean and legible manner and in compliance with all requirements of local governmental entities: (i) apaper copy of the documents and the approved set of drawings in good condition, (ii) the approved permit set of plans, and (iii) one complete set of reproducible drawings on which has been neatly drafted all deviations and changes recorded on the job prints, (iv) a CD -ROM containing the as-built documents, Shop Drawings, Specifications, Addenda, maintenance manuals and warranties to the Architect for submittal to the Owner in accordance with the provisions of the Contract Documents, and (v) an electronic copy in PDF and DWG format. Satisfactory maintenance of up -to -date as-built drawings on a monthly basis will be a requirement for approval of progress payments. § 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES § 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. § 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, . diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. - § 3.12.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. § 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the , design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of 0 Section 4.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. . § 3.12.5 The Contractor shall review for compliance with the Contract Documents, note any deviations from the Contract Documents, approve in writing and submit to the Architect Shop Drawings, Product Data, Samples _ and similar submittals required by the Contract Documents with reasonable promptness and frequency and in . such sequence and uniform flow rate as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action, which will not constitute an Owner- caused delay to the Contractor. At the time of submission, the Contractor shall inform the Architect in writing if expedited review is required or if there is any deviation in the Shop Drawings, Product Data, or Samples from the requirements of the Contract Documents. So far as practicable, each Shop Drawing or Product Data submittal shall bear a cross reference note referring to Drawing or detail numbers on the Drawings showing,the same Work in order to facilitate checking of Shop Drawing or Product Data and their prompt return to the Contractor. Shop Drawings for interrelated Work shall be submitted at approximately the same time. The Contractor shall stamp and initial its approval on all Submittals prior to submitting them to the . Architect indicating that the Contractor has satisfied its responsibilities under the Contract Documents for review of the Submittals. The Contractor shall keep accurate records of the receipt, review and delivery of all . Submittals and shall inform the Owner reports at the weekly meetings of the status of their review, identifying the location and the causes of any failure to promptly receive such submissions and suggesting responsibility. 1 § 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. 1 0 -- ` 'A1A Document A201'' —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. AU rights reserved. WARNING: This AIM Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 2 0 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AiA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848 2.DOC (2273420147) • .1 Each submittal shall bear a stamp or specific written indication that Contractor has satisfied Contractor's responsibilities under the Contract Documents with respect to the review of the submission. .2 Each submittal shall be accompanied by a completed Submittal Cover Sheet, as included in the Project Manual or provided by the Architect, which shall clearly identify applicable Specification Section and Contract Section number(s), material, supplier, pertinent data such as catalog numbers and the use for which intended. § 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective 1 submittal has been approved- reviewed and no exception has been taken by the Architect. § 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically 1 • informed the Architect and the Owner in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Architects approval, review or acceptance thereof. Any corrections or modifications to Shop Drawings made by the Architect shall be deemed accepted by the Contractor, without change in Contract Sum or Component Time, unless the Contractor provides the Architect and the Owner with written notice at least three (3) working days before commencing any Work from such Shop Drawings. The Contractor shall make all corrections requested by the Architect and, when requested by the Architect, provide a corrected Submittal without change in the Contract Sum or Component Time. § 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. § 3.12.10 The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy.' The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Section 3.12.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. AIA Document A201"" —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American (nit. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) . • . 0 • § . , 3,13 USE OF SITE § 3.13.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. § 3.14 CUTTING AND PATCHING . § 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. § 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work: § 3.14.3 Existing structures and facilities, including but not limited to buildings, landscaping, utilities, topography, streets, curbs, and walks, that are damaged or removed due to excavations or other construction work, shall be patched, repaired or replaced by the Contractor to the satisfaction of the Architect, the owner of such structures and facilities, and governmental authorities having jurisdiction. In the event the governmental authorities require that the repairing and patching be done with their own labor and/or materials, the Contractor shall abide by such regulations and it shall pay for such work at no additional cost to the Owner. § 3.15 CLEANING UP - § 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At the Owner's request and in any event, at the completion: < - of the Work, the Contractor shall remove from and about the Project waste materials, rubbish, the Contractor's III ::,, -;', ,`--,;,',' ::2 ' -''. ,, tools, construction equipment, machinery and surplus materials. § 3,152 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the ; , • : . 1 cost thereof shall be charged to the Contractor. • § 3.16 ACCESS TO WORK ' § 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress . wherever located. § 3.17 ROYALTIES, PATENTS AND COPYRIGHTS § 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations'are contained in Drawings, Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. • . § 3.18 INDEMNIFICATION - § 3.18.1 To the fullest extent permitted by law and subject to the following conditions, , b, the Contract tef-in-accordancc with Section 11.3, the Contractor shall defend, indemnify and hold harmless the Owner, its council members, officials, employees, consultants, and volunteers, the Program Manager, the Architect, Architect's consultants, and agents and employees, successors and assigns of any of them ( "Indemnified Parties ") from and against third -party claims, damages, losses and expenses, direct and indirect, or consequential, including but not limited to costs and attorneys' fees incurred on such claims and in proving the right to indemnification, arising out of or resulting from : - .. _ . . _ : , :: : , . . _ _ 0 AIA Document A201 TM - 199 7. Copyright ®1911, 1915, 1918, 1925, 193 7, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American !nit Institute of Architects. All rights reserved. WARNI This MAW Document is prote cted by U.S. Copyrigh Law and Int Trea Unauthorized 22 reproduction or distribution of this AlA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) III _.....,:...•...__, : : , ...,• .•:::..::.::::. ......, •_.:. ,:•_•...,: :„...7: :•.•._ :: intentional misconduct or negligent acts or omissions of the Contractor, a Subcontractor of any tier, their agents and anyone directly or indirectly employed by them or anyone for whose acts they may be liable • l "Indemnitor" - _ • . - . - - .- : - - ... - ., - -, :.. _ -, - - • - :. ... : Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 3.18. § 3.18.1.1 The Contractor will fully defend and indemnify the Indemnified Parties for the sole negligence or intentional misconduct of the Indenmitor. . § 3.18.1.2 To the extent of the Indemnitor's negligence, the Contractor will indemnify but not defend the Indemnified Parties for the concurrent negligence of the Indemnitor. To the extent any portion of this Section 3.18 is stricken by a court or arbitrator for any reason, all remaining provisions shall retain their vitality and effect. § 3.18.2 In claims against any person or entity indemnified under this Section 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they • may be liable, the indemnification obligation under Section3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. After mutual negotiation of the parties, the Contractor waives immunity as to the Owner, the Architect and their consultants only under Title 51 RCW, "Industrial Insurance." IF THE CONTRACTOR DOES NOT AGREE WITH THIS WAIVER, IT MUST PROVIDE A WRITTEN NOTICE TO THE OWNER AS PART OF ITS RESPONSE TO THE RF'P, OR THE CONTRACTOR WILL BE DEEMED TO HAVE NEGOTIATED AND WAIVED THIS IMMUNITY. ARTICLE 4 ADMINISTRATION OF THE CONTRACT § 4.1 ARCHITECT § 4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative and does not include any employees of the Owner. § 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner,' Contractor and Architect. Consent shall not be unreasonably withheld. § 4.1.3 If the employment of the Architect is terminated, the Owner shall employ a new Architect against whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the former Architect. • § 4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT § 4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents, and .. e • • - ' - - - .. ' : (1) during.construction, (2) until final payment is due and (3) with the . Owner's concurrence, from time to time during the one -year period for correction of Work described in Section 12.2. The Architect will have authority to act on behalf ofthe Owner only to the extent provided in the Contract Documents, unless otherwise modified in writing in accordance with other provisions of the Contract. Neither the Program Manager nor the Architect is the agent of the Owner, nor is either authorized to agree on behalf of the Owner to changes in the Contract Sum or Component Time. nor to direct the Contractor to take actions that change the Contract Sum or Component Time. § 4.2.2 The Architect, as arcprescntativc of thc Owner, will visit the site at intervals appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to keep the Owner informed about the . AIA Document A201" -1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The America Init Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIN Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) 411 , and quality of the Work completed, to endeavor to guard the Owner a ainst defects progress q tY Pte P , ( ) g g and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the Work. The Neither the Architect nor the Owner will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents, except as provided in Section 3.3.1. The presence of the Architect or the Owner at the site shall not in any manner be construed as assurance that the Work is being completed in compliance with the Contract Documents, nor as evidence that any requirement of the Contract Documents of any kind, including notice, has been met or waived. § 4.2.3 Thc Neither the Architect nor the Owner will net-be responsible for the Contractor's failure to. perform the Work in accordance with the requirements of the Contract Documents. The-Neither the Architect nor the Owner will net-have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions • of the Work. Neither the Program Manager, Architect nor the Owner will be responsible for defining the extent of any subcontract or dealing with disputes between the Contractor and third parties. § 4.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract • Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters.arising out of or relating to the Contract. The Contractor also shall provide the Owner with a direct copy of all written communications to the . Architect, including all notices, requests, Claims, and potential changes in the Contract Sum or Time but not including Shop Drawings, Product Data or Samples. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the Owner. § 4.2.5 Based on the Architect's observations and evaluations of the Work and the Contractor's Applications for Payment, the Architect will review and c e r ti1 ' make recommendations to and otherwise assist the Owner to determine the amounts due the Contractor and will issue Certificates for Payment in such amounts. § 4.2.6 The ArchitectOwner will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect or the Owner considers it necessary or advisable, the Architect and the Owner will have authority to require inspection or testing of the Work in accordance with Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect and the Owner nor a decision made in good faith either to exercise or not to 'exercise such authority shall give rise to a duty or responsibility of the Architect or the Owner or its representatives to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. • § 4.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or' performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. AIA Document A201^ — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976; 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AiA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 24 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) Regardless of how a submittal is marked, the Contractor should not presume that the Architect has reviewed a ID submittal in every aspect § 4.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Section 7.4. § 4.2.9 The Architect will sendnet-inspections -make observations, make recommendations and otherwise assist the Owner to determine the date or dates of Substantial Completion and the date of fFinal eCompletion, will receive and forward to the Owner, for the Owner's review and records, written warranties and related -other documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. § 4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. " § 4.2.11 The Architect will interpret and decide matters concerning performance under and requirements of, the Drawings and Specifications on written request of either the Owner or Contractor. The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is made concerning the time within which interpretations required of the Architect shall be furnished in compliance with this Section 4.2, then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until 44- fourteen (14) days after written request is made for them. . § 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably • inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial decisions, the Architect will endeavor to secure faithful performance of the Contract ID by both Owner and Contractor, will not show partiality to either and will not be liable to the Contractor for results of interpretations or decisions so rendered in good faith. § 4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if consistent with the intent - 1 expressed in the Contract Documents and agreeable to the Owner. § 4.3 CLAIMS AND DISPUTES § 4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the ,. . Owner and Contractor arising out of or relating to the Contract Documents. Claims must be initiated ten netieein writing and include the information and substantiation required by the Contract Documents. The responsibility to substantiate Claims shall rest with the party making the Claim. Neither a Request for Information, nor a Construction Change Directive, nor a Change Order, nor a reservation of rights, nor minutes of a meeting, nor a dais report, nor .a ROM log entry, nor an Owner's request for or the Contractor's response to a Change Order proposal or proposal request, nor a notice of a potential or future Claim shall constitute a , Claim. Notice is sufficient if the item is on the Potential Change Order Log and discussed in and noted in the minutes of the weekly meeting. ` § 4.3.3 Continuing Contract Performance. Pending final resolution of a Claim, including the dispute resolution process and except as otherwise agreed in writing or as provided in Section 9.7.1 and Article 14, the Contractor • AIA Document A201 T "! - 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This MAO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document or any portion of it, may result in severe civil and criminal penalties, and will,be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) . . _ • shall proceed diligently with performance of the Contract and maintain the Contractors Construction Schedule, and the Owner shall continue to make payments in accordance with the Contract Documents. § 4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (1) • subsurface or otherwise concealed physical conditions which differ materially from those indicated in any soils reports made available to the Contractor by the Owner or in the Contract Documents or (2) unknown physical - conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally , recognized as inherent in construction activities of the character provided for in the Contract Documents, then the Contractor shall give written notice to the Owner and the Architect - : ' -: : ,- - ::: - • - _ :.. -• .. : promptly before conditions are disturbed and in no event later than seven (7) days after first observance of the conditions. The Architect will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or TimeComponent Time, or both, consistent with the requirements of the Contract Documents. If the Architect . determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall so notify the Owner and Contractor in writing, stating the•reasons. Any Claim of the Contractor arising from the Architect's determination shall be made in accordance with the dispute resolution procedure in Sections 4.4 through 4.6. No increase to the Contract Sum or the Component Time is allowable if the Contractor knew or reasonably should have known of the concealed conditions prior to its executing the applicable Amendment. s-by - , § 4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute .the Work, and, to be valid, a Claim must be made in accordance with Sections 4.4 through 4.7, or it will be waived. Prior notice is not • ' required for Claims relating to an emergency endangering life or property arising under Section 10.6. • • § 4.3.6 If the Contractor believes additional cost is involved for reasons including but not limited to (1) a written interpretation from the Architect, (2) an order by the Owner to stop the Work where the Contractor was not at fault, (3) a written order for a minor change in the Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall be filed in accordance with this Sections 4.3 through 4.7 . The Contractor shall not be entitled to an increase in the Contract Sum or Component Time arising out of an error or conflict in or among the Contract Documents where the failed adequately to review the Contract Documents or failed timely to report the error or conflict to the Architect and the Owner in a timely manner consistent with requirements of the • Contract Documents. § 4.3.7 Claims for Additional Time § 4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract TimoComponent Time, a written notice as provided herein shall be given and a written Claim as specified in the Contract Documents • shall be submitted. The Contractor's Claim shall include an estimate of any cost and of probable effect of delay • . on progress of the Work. In the case of a continuing delay only one Claim is necessary. If the delay was not caused by the Owner, the Contractor, a Subcontractor of any tier, or the Architect," or anyone acting on behalf , of any of them, the Contractor is entitled only to an increase in the Component Time in accordance with the Contract Documents but not a change in the GMP. If the delay was caused by the Contractor, a Subcontractor of any tier, or anyone acting on behalf of any of them, the Contractor is not entitled to an increase in the Component Time or in the Contract Sum. • § 4.3.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not ilo Ini AIA Document A201 - 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA0 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 26 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was, produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. - User Notes: Yakima 15170848_2.DOC (2273420147) have been reasonably anticipated and had an adverse effect on the scheduled construction, and that the Work III was on schedule (or not behind schedule through the fault of the Contractor) at the time the adverse weather conditions occurred . ' Neither the Component Time nor the GMP will be adjusted for normal inclement weather. The Contractor shall be entitled to a change in the Component Time only if the Contractor can substantiate to the reasonable satisfaction of the Owner and Architect that (1) there was materially greater than normal inclement weather considering the full term of the Component Time and using a ten -year average of accumulated record mean values from climatological data compiled by the U.S. Department of Commerce National Oceanic and Atmospheric Administration for the locale closest to the Project, and (2) the alleged abnormal inclement weather actually extended the critical path of the Work. The substantiated change in the Component Time shall be provisional until Substantial Completion has been achieved, at which time the change in the Component Time shall be the extent to which the total net accumulated number of calendar days lost due to inclement weather from commencement of the Work through Substantial Completion exceeds the . total net accumulated number to be expected for the same period from the aforesaid data. § 4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. This Section does not apply • to Claims, damages for additional costs, acceleration or delay. § 4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted. § 4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for 4110 consequential damages arising out of or relating to this Contract. This mutual waiver includes without limitation: .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Contractor for principal and home office overhead and expenses including without limitation the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit; for losses on other projects-except -- - . , and for interest or financing costs. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's • - termination in accordance with Article 14. Nothing contained in this Section 4.3.10 shall be deemed to preclude an award of liquidated Wiest damages, when applicable, in accordance with the requirements of the Contract - Documents or to preclude an obligation to indemnify for direct, indirect or consequential damages alleged by a . third party. - § 4.4 RESOLUTION OF CLAIMS AND DISPUTES § 4.4.1 In an effort to reduce the incidence and costs to all parties of extended disputes, all Claims, direct or . indirect, arising out of, or relating to, the Contract Documents or the breach thereof, except claims which have been waived under the terms of the Contract Documents, shall be decided exclusively by the following alternative dispute resolution procedure unless the parties mutually agree in writing otherwise. 4.4.2 Exce ,t for Claims re.uirin. notice before .roceedinl with the affected Work as otherwise described in the Contract Documents, the Contractor shall submit a written notice of any Claim to the Owner and the Architect within fourteen (14) days of the occurrence of the event giving rise to such Claim and shall include a clear description of the event leading to or causing the Claim. An "event giving rise to a Claim" is not a Request for Information but rather is a response that the Contractor believes would change the GMP and/or • AIA Document A201 —1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American !nit Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) ' . . . . . . III . Time. For all Claims the Contractor shall submit a written Claim as provided herein within thirty p e o p rty (30) days of the earlier of the notice or the entry on the Potential Change Order Log. Claims shall include a clear description of the Claim and any proposed change in the GMP (showing all components and calculations) and/or Component Time (showing cause of and analysis of the resultant delay in the critical path and other . information referenced in Section 8.3.2) and shall provide data fully supporting the Claim, including without limitation a complete explanation as to why the relief sought is not within the scope of the Contract Documents. The Contractor may delay submitting data by an additional fourteen (14) days if it notifies the Owner in its Claim that substantial data must be assembled. Failure to properly submit the notice or Claim shall constitute ' waiver of the Claim. The Claim shall be deemed to include all changes, direct and indirect, in cost and in time to which the Contractor (and Subcontractors of any tier) is entitled and may not contain reservations of rights ' without the Owner's written approval; any such unapproved reservations of rights shall be without effect. Any claim of a Subcontractor of any tier may be brought only through, and after review by, the Contractor. • • . . . ether-than-the-Owner, .. .. • . • .. .. _ Owner' s- expense- . arbitration: _ .. - - § 4.4.7 Upon receipt of a Claim against the Contractor or at any time thereafter, the Architect or the-Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. if the Claim relates to a AIA Document A201"" — 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 28 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848 2.DOC (2273420147) • possibility of a Contractor's default, the Architect or the Owner may, but is not obligated to, notify the surety • Y g fY tY and request the surety's assistance in resolving the controversy. § 4.4.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the Claim by the Architect, by mediation or by arbitration litigation. 4.4.9 Within thirty (30) days of the Owner's receipt of the complete written Claim, the Contractor mare require that an officer of the Contractor, a principal of the Architect, and the Owner's City Manager or designee (all with authority to settle) meet, confer, and attempt to resolve the Claim during the following twenty-one (21) days. As required by statute, the Owner will accept or reject the Claim within sixty (60) days of its receipt of the complete written Claim, including all supporting documentation; if the Owner does not respond in writing within this period, the Claim is deemed denied. If the Claim is not resolved, the Contractor may bring no claim against the Owner unless the Claim is first subject to nonbinding mediation as described in Section 4.5. This requirement cannot be waived except by an explicit written waiver. § 4.5 MEDIATION § 4.5.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Sections. 1.3.10, 9.10.1 and 9.10.5 shall, . = _ • • - . . , _ , er-30 -days after submission of the Claim to the Architect, be subject to mediation as a condition precedent to arbitration- or-the institution of legal or equitable proceedings by either party. This requirement cannot be waived except by an explicit written waiver. • § 4.5.2 The parties shall endeavor to resolve their Claims by mediation. A request for mediation shall be filed in writing with the other party to the Contract, and the parties shall promptly attempt to mutually agree upon a mediator. If the parties have not reached agreement on a mediator within thirty (30) days of the request, either party may file the request with the American Arbitration Association or such other alternative dispute - • resolution service to which, unless the parties mutually agree- otherarise, with a copy to the other party and the mediation shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association (or other agreed service) currently in effect. • - :. - : •• - • - . _ - . • • _ • . • - •. _ . - = ... • . • - .. . - • , •• _ediation shall proceed in • advance of arbitration -er -legal or equitable proceedings, which shall be stayed pending mediation-for-a-period ! : • .. _ - - - • • _, unless stayed for a longer period by agreement of the parties or court order. 1 § 4.5.3 The parties to the mediation shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. - Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 4.5.4 An officer of the Contractor and the Owner's City Manager or designee must attend the mediation . session with authority to settle the Claim. To the extent there are other parties in interest, such as the Architect or Subcontractors, their representatives, also with authority to settle the Claim, shall also attend the mediation session. Unless the Owner and the Contractor mutually agree in writing otherwise, all unresolved Claims shall be considered at a single mediation session that shall occur prior to Final Acceptance by-the Owner. " § 4.6 ARBITRATIONLITIGATION § 4.6.1 Litigation. The Contractor may bring no litigation on Claims-unless such Claims have been properly raised and considered in the procedures of Sections 4.3 through 4.7. The Contractor shall have the burden to demonstrate in any litigation that it has complied with all requirements of Sections 43 through 43. All unresolved Claims of the Contractor shall be waived and released unless the Contractor has complied with the time limits of the Contract Documents, and litigation is served and filed within the earlier of (a) 120 days after the Date of Substantial Completion approved in writing by the Owner or (b) sixty (60) days after Final Acceptance. This requirement cannot be waived except by an explicit written waiver signed by the Owner and AIA Document A201 "A - 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958,1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized j • • reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • the Contractor. The endenc of a mediation shall toll these deadlines until later of the mediator providing p y o til the la p g written notice to the parties of impasse or thirty (30) days after the date of the last mediation session. Neither - the Contractor nor a Subcontractor of any tier, whether claiming under a bond or lien statute or otherwise, shall • be entitled to attorneys' fees directly or indirectly from the Owner (but may recover attorneys' fees from the ' bond or statutory retain ge fund itself to the extent allowable under law). • - ' __ ., • _ , , _ " . _ - . . § 4.6.2 The Owner may join the Contractor as aparty to any litigation/arbitration involving the alleged fault•of . the Contractor or Subcontractor of any tier. , . _ - _ - , _ ,• - :. . : _ : _ • _ : _ „ - • , , , _ • • • .. . . . ill ., . • .. . • • • • • • " " . , . • • • • • _. . • . . . . . . • § 4.7 NOTICE AND CLAIMS § 4.7.1 All notices and Claims shall be made in writing as required by the Contract. Any notice of a Claim of : . the Contractor against the Owner any Claim of the Contractor, whether under the Contract or otherwise, . . ' must be made pursuant to and in strict accordance with the applicable provisions of the Contract. - No act, • omission, or knowledge, actual or constructive, of the Owner or the Architect shall in any way be deemed to be a waiver of the requirement for timely written notice and a timely written Claim unless the Owner and the • Contractor sign an explicit, unequivocal written waiver approved by the Owner's Board of Directors. • $ 4.7.2 The fact that the Owner and the Contractor may continue to discuss or negotiate-a Claim that has or may - have been defective or untimely under the Contract shall not constitute waiver of the provisions of the Contract ' Documents unless the Owner and Contractor sign an explicit, unequivocal waiver approved by the Owner's Board of Directors. - 0 AIA Document A201 — 1997. Copyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American lflit, Institute of Architects. All rights reserved. WARNING: This Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 30 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC - . (2273420147) 1 I' S 4.7.3 The Contractor's failure timely to`submit required notices or timely submit Claims has a substantial impact upon and prejudices the Owner, including but not limited to the inability to fully investigate or veri fy the Claim, mitigate damages, choose alternative options, adjust the budget, delete or modify the impacted Work, and/or monitor time, cost and quantities. For these and other reasons, actual or alleged prejudice shall not be required to enforce the notice or Claim provisions of the Contract Documents. ARTICLE 5 SUBCONTRACTORS . § 5.1 DEFINITIONS § 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion. 1 of the Work at the site or to supply materials or equipment. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of - the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. . § 5.1.2 A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to - perform a portion of the Work at the site or to supply materials or equipment. The term "Sub- subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub - subcontractor or an authorized representative of the Sub - subcontractor. § 5.1.3 A Subcontractor of any tier is a Subcontractor or Sub - subcontractor. • 5.1.4 The desi . ation of terns in this article is not meant to chan l e or alter the definitions contained in RCW 60.28, "Lien for Labor, Materials, Taxes on Public Works," RCW 39.12, "Prevailing Wages on Public Works," or other statutory definitions of a subcontractor. § 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK - § 5,2,1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of each Subcontractor bid packagethe- Contract, shall furnish in writing to the Owner through and the Architect the names of all persons or entities (including those who'are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work, consistent with the listing required along with the Bid. The Contractor shall organize this list of Subcontractors in the same sequence as the Index of Specification Sheets, and state the Work category followed by the name of the Subcontractor and/or fabricator (or "Contractor" where the portion of the Work is'by the Contractor's own forces). The list shall be accompanied by evidence of any qualifications required within the technical sections of the Project Manual and satisfactory to Architect and Owner. The list shall be updated promptly as part of the payment process if additional Subcontractors of anv tier are engaged. No action or inaction of the Owner or Architect in response to receipt of the names of the proposed Subcontractors of any tier shall constitute approval of any Subcontractor of any tier or of its performance. The Architect will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect to reply promptly shall constitute notice of no reasonable objection. § 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. § 5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner or Architect has no reasonable objection. If the proposed but rejected Subcontractor was qualified, "responsible" and reasonably capable of performing the Work, the Contract Sum and Contract TimoComponent Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the 1 substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract TimoComponent Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting AIA Document A201 T" —1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order. No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) qualified names as required, and no increase in the Component Time shall be allowed for such change if the q q p g Owner had made a reasonable objection. Such a replacement shall not relieve the Contractor of its responsibility for the performance of the Work or compliance with all of the requirements of the Contract within the Component Time. § 5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner or Architect makes reasonable objection to such substitute. • 5.2.5 If the Owner reasonabl concludes that an • ortion of the Work subcontracted b the Contractor is not being prosecuted in accordance with the Contract Documents, the Contractor shall, upon request of the Owner, remove the Subcontractor performing such work. This removal shall not relieve the Contractor of its responsibility for the performance of the Work or complying with all of the requirements of the Contract within the GMP and Component Time, nor shall the Owner be obligated to so request. • 4 5.2.6 As used in this Section 5.2, "reasonable objection" shall include without limitation: .1 a proposed lower -tier Subcontractor differing from the entity listed with a Subcontractor's bid, .2 lack of "responsibility" of the proposed Subcontractor, as defined in RCW 39.04 and 39.10, .3 lack of qualification as required by the Specifications, or .4 material failure to perform satisfactorily (such as causing a material delay or submitting a claim the Owner considers inappropriate) on one or more projects for the Owner within three (3) years • of the bidding date. • • - § 5.2.6 The Contractor shall verify responsibility- criteria for each first -tier Subcontractor. A Subcontractor of any tier that engages lower -tier Subcontractors must verify responsibility criteria for each of its lower -tier Subcontractors. Verification shall include that each lower -tier Subcontractor, at the time of subcontract • execution, meets the responsibility criteria listed in the Instructions to Bidders for the bid package. • § 5.3 SUBCONTRACTUAL RELATIONS • . § 5.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and . responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to • the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, - remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub - subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be • bound, 'and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will . similarly make copies of applicable portions of such documents available to their respective proposed Sub- subcontractors. The Contractor shall provide to the Owner copies of the written agreements between the' Contractor and any Subcontractor on request. The Owner shall keep these agreements confidential: § 5.3.2 The Contractor shall schedule,-supervise and coordinate the operations of all Subcontractors of any tier, including any suppliers of early procurement items. No subcontracting of any of the Work shall relieve the Contractor from its responsibility for the performance of the Work in accordance with the Contract Documents • or from its responsibility for the performance of any other of its obligations under the Contract Documents. The Contractor is responsible for the timely; accurate and appropriate Subcontractor coordination of the Work of lower -tier Subcontractors in accordance with the overall Work, including communications, meetings, drawings, illustrations, and other necessary associated activities required for the successful coordination of all trades, schedules, materials and workmanship. - AIA Document A201 - 1997. Copyright ® 1911, 1915. 1918, 1925, 1937, 1951, 1958, 1961. 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American • Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 32 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. - User Notes: Yakima 15170848_2.DOC - (2273420147) • 0 4 5.3.3 The Contractor agrees to diligently. and using its best efforts. cause each Subcontractor to correct, at that Subcontractor's own expense, all work performed by the Subcontractor that is defective in material or workmanship or otherwise fails to conform to the Contract Documents, including all necessary removal. replacement and/or repair of any other portion of the Project which may be damaged in removing. replacing or repairing any portion of the Project. If any Subcontractor defaults in its obligation promptly to correct any such deficiency, the Contractor shall be responsible for correcting the deficiency. • 5.3.4 The Contractor shall and shall cause its Subcontractors of an tier to live all ref uired notices and comply with all applicable health and safety laws, rules, regulations. codes and lawful orders of public authorities and of quasi governmental authorities relating to the Work, including without limitation all OSHA and WISHA requirements, and the Contractor shall, and shall cause applicable Subcontractors of any tier to indemnify, defend and hold harmless the Owner from and against any and all claims, liabilities, fines and attorneys' fees arising from any failure of the Contractor or a Subcontractor of any tier to have complied with any such requirements in any respect. § 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS § 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor-to the Owner provided that: .1 assignment is effective only after termination of the Contract by the Owner fpursuant to Paragraph 14.2 or 14.4 and only for those subcontract agreements which the Owner accepts by notifying the Subcontractor and Contractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. § 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. $ 5.5 LIENS - 5.5.1 The Contractor shall promptly pay (and secure the discharge of any liens asserted by) all persons properly furnishing labor, equipment, materials or other items in connection with the performance of the Work (including, but not limited to, any Subcontractors of any tier) to the extent that the Owner has paid the Contractor for such. The Contractor shall furnish to the Owner such releases of liens or claims and other documents as the Owner may request from time to time to evidence such payment (and discharge). The Owner may, at its option, withhold payment, in whole or in part, to the Contractor until such documents are furnished. - The Contractor may provide other security acceptable to the Owner, such as a bond, in lieu of paving disputed lien claims. • ' • § 5.5.2 The Contractor shall defend, indemnify, and hold harmless the Owner from any liens, including all expenses and attorneys' fees, except to the extent a lien has been filed because of failure of payment by the Owner. - ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § 6.1.1 The Owner reserves the right fo perform construction or operations related to the Project with the - Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay.or additional cost is involved because of such action by the Owner, the Contractor shall make such Claim as provided in Paragraphs -4.3 and 4.4, except that the Contractor shall have no claim for construction or operations to the extent disclosed in the Bidding Documents or Contract Documents. AIA Document A201 TM — 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) 0 . § 6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner - Contractor Agreement. § 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall make any revisions to the construction schedule deemed necessary after . a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. § 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or _____ . _,, operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the . same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12. § 6.2 MUTUAL RESPONSIBILITY § 6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. If the Contractor receives items from a separate contractor or from the Owner for storage, erection or installation, . the Contractor shall acknowledge receipt for items delivered, and thereafter will be held responsible for the - care, storage and any necessary replacement of items received. . § 6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations . al by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, 1 promptly report to the Architect and the Owner apparent discrepancies or defects in such other construction that • would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. § 6.2.3 The Owner shall be reimbursed indemnified by the Contractor for costs incurred by the Owner which are payable to a separate contractor because of delays, improperly timed activities or defective construction of - the Contractor. The Owner shall be responsible to the Contractor for costs incurred by the Contractor because _ of delays, improperly timed activities, damage to the Work or defective construction of a separate contractor. ' If such a separate contractor sues or initiates anv proceeding against the Owner on account of any damages or delays alleged to have been caused by the Contractor, the Owner shall notify the Contractor. The Contractor shall defend all such proceedings at its own expense, and shall defend, indemnify, and hold the Owner harmless - from any damages awarded on such claims, including all attorneys' fees and other costs incurred by the Owner. § 6.2.4 The Contractor shall promptly remedy damage caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5. . . . . § 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Section 3.14. • § 6.3 OWNER'S RIGHT TO CLEAN UP § 6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Architect will allocate the cost among those responsible. 0 AIA Document A201 "" - - 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 34 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ! maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) 7 ARTICLE 7 CHANGES IN THE WORK § 7.1 GENERAL § 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the 1 Contract, solely by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. § 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by. the Architect alone. § 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work. • 7.1.4 Before effectuatin . a chan le in the Work the Owner ma in a Pro I osal Res uest ask the Contractor to propose the amount of change in the Contract Sum, if any, and the extent of change in the Component Time, if any, arising from the proposed change in the Work. The Contractor shall submit its responsive proposal as soon as possible and within fourteen (14) days, and shall in good faith specify the components and amounts by which the Contract Sum and/or Component Time would change. Labor, materials and equipment shall be limited to and itemized in the manner described in Section 7.5 for the Contractor and major Subcontractors. If the Contractor fails to respond within this time, the Owner may withhold up to ten percent (10 %) of a progress - payment otherwise due until the tardy proposal is received. If the Owner explicit accepts the proposal in • writing, the Owner and the Contractor will be immediately bound to the terms of the proposal, the change will be included in the next available Change Order, and the change in the Work described in the proposal shall commence expeditiously. The Owner may reject the proposal, in which case the Owner may either not effectuate the change in the Work or may order the change through a Construction Change Directive or: supplemental instruction or an order for a minor change in the Work. The Architect and the Owner may confer directly with Subcontractors of any tier concerning any item proposed to the Owner under this Article • § - 7.1.5 If the Contractor adds a reservation of rights that has not been initialed by the Owner to any Change Order, Construction Change Directive, Change Order proposal, Application for Payment or any other • document, all amounts therein shall be considered disputed and not due or payable unless and until costs are re- negotiated or the reservation is withdrawn or changed in a manner satisfactory to and, in all cases, initialed by the Owner. If the Owner makes payment for a Change Order or an Application for Payment that contains a reservation of rights not initialed by the Owner to indicate agreement with the reservation, and if the Contractor negotiates the check for such payment, then the reservation of rights shall be deemed waived, withdrawn and of no effect. § 7.2 CHANGE ORDERS - § 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect, stating their agreement upon all of the following: .1 change in the Work; • .2 the amount of the adjustment, if any, in the Contract Sum; and .3 the extent of the adjustment, if any, in the Contract TimcComponent Time. • § 7.2.2 Methods used in determining adjustments to the Contract Sum may include those listed in Section 7.3.3. § 7.3 CONSTRUCTION CHANGE DIRECTIVES • § 7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or 1 Contract TimcComponent Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of 1 additions, deletions or other revisions, the Contract Sum and Contract TimeComponent Time being adjusted AIA DocumentA201' — 1997. Copyright 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architects. All rights reserved. WARNING: This ALA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23 :14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) Ill . . a ccordingly, The Owners use of a Construction Change Directive does not constitute agreement that the directive constitutes a change in the Work. § 7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order: • § 7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: . .1 mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; .2 unit prices stated in the Contract Documents or subsequently agreed upon;' .3 cost to be determined in a manner agreed upon by the parties (accompanied by the Contractor's rough order of magnitude estimate of probable cost) and a mutually acceptable fixed or percentage fee; or .4 as provided in Section 7.3.6. § 7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved. and As soon as possible, and within seven (7) days of receipt, the Contractor shall advise the Architect in writing of the Contractor's agreement or disagreement with the proposed adjustment or the. method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract TimcComponent Time. The Contractor's response shall reasonably specify the reasons for its disagreement and the adjustment or other terms that it proposes. Without such timely written • response, the Contractor shall conclusively be deemed to have accepted the Owner's adjustment. The Contractor's disagreement shall not relieve the Contractor of its obligation to comply promptly with any written notice issued by the Owner or the Architect, The adjustment shall then be determined by the Architect in , accordance with the provisions of the Contract Documents. The ultimate adjustment shall not exceed the larger , 0 amount submitted. § 7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor - therewith, including adjustment in Contract Sum and Contract eComponent Time or the method for determining them. Such agreement shall be effective immediately and shall be reeended -as- incorporated into a Change Order. . § 7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, or if cost is to be determined • : -- = ,- - : : -- : :: _ - - • - • • = :: ,- _ ' - - : • • • u se -under Section 7.3.3.3, the Contractor shall keep and present, itemized in the categories of Section 7.5 for Subcontractors of any tier and of Article 6 of the Agreement for the Contractor and in such form as the Architect may prescribe, an itemized accounting together with appropriate supporting data. In order to facilitate checking of such quotations, all proposals, except those so minor that their propriety can be seen by inspection, shall be accompanied by complete itemization of costs, including labor, equipment, material and subcontract costs. Approval may not be given without such itemization. Failure to provide data within twenty -one (21) days of the Owner's request shall constitute waiver of any Claim for changes in the Component Time or GMP. - The total cost of any change, including a Claim under Section 4.3 through 4.7, shall be limited to the reasonable value, as determined by the Owner (subject to appeal through the dispute resolution procedure of . Section 4.4), of the items in Section 7.5 for Subcontractors of any tier and of Article 6 and Section 5.1.1 of the Agreement for Work performed by the Contractor. Unless otherwise agreed in writing by the Owner, the cost shall not exceed the lower of the prevailing cost for the work in the locality of the Project or the cost of the work in the current edition of R.S. Means Company, Inc., Building Construction Cost Data as adjusted to local . costs and conditions. The Architect and the Owner may communicate directly with Subcontractors concerning costs of any Work included in a Construction Change Directive. If the Contractor disagrees with the method or the adjustment in the Component Time, the adjustment or method shall be referred to the Architect for determination, and any adjustment shall be limited to the change in the actual critical path of the Contractor's • AIA Document A201 TM' — 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties, Unauthorized' 36 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC - (2273420147) Construction Schedule directly caused thereby. _ _ . ,. - • _ . . - . • - - : _ : _ ., _ - y -- ID to -the -Weld § 7.3.7 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be the largest of (i) the reasonable and prevailing value of the deletion or change, (ii) the line item value in the Schedule of Values, or (iii) the actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. § 7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner, and provided that any reservations of rights in respect to the Construction Change Directive have been initialed by the Owner amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement with part or all of such costs. Forams Article 1. IP § 7.3.9 When the Owner and Contractor agree with the determination made by the Architect concerning the adjustments in the Contract Sum and Contract eComponent Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. • 7.3.10 An ad•ustment in the Com . onent Time arisin • from a Chan. e or a Claim shall be limited to the change in the actual critical path of the Contractor's Construction Schedule directly caused thereby. § 7.4 MINOR CHANGES IN THE WORK § 7.4.1 The Architect and the Owner will have authority to order minor changes in the Work not involving ', adjustment in the Contract Sum or extension of the Contract TimeComponent Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order such as an Architect's Supplemental Instruction and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly. § 7.5 PRICING COMPONENTS . § 7.5 For Subcontractors -of any tier, the total cost of any changed Work or of any other increase - or decrease in the Contract Sum, including a Claim, shall be limited to the following components: 4 7.5.1 Direct labor costs: These are the estimated or actual labor costs determined by the number of additional craft hours and the hourly costs necessary to perform the change in the Work. The hourly cost shall be based upon the following: .1 Basic wages and fringe benefits: The hourly wage (without markup and fringe benefits paid by the Subcontractor as established by the Washington Department of Labor and Industries or contributed to labor trust funds as itemized fringe benefits, whichever is applicable, not to exceed that specified in the applicable "Intent to Pay. Prevailing Wage" for the laborers, AIA Document A201 "" - 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American !nit Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • _ , . III . , • apprentices, journeymen, and foremen performing the changed Work on the site. The premium portion of overtime wages is not included unless pre- approved in writing by the Owner. Costs paid or incurred by the Subcontractor for vacations, per diem, travel, bonuses, stock options, or discretionary payments to employees are not separately reimbursable. .2 Workers' insurances: Direct contributions to the State of Washington as industrial insurance; . medical aid; and supplemental pension by class and rates established by the Washington Department of Labor and Industries. .3 Federal insurances: Direct contributions required by the Federal Insurance Compensation Act (FICA); Federal Unemployment Tax Act (FUTA); and State Unemployment Compensation Act (SUCA). • § 7.5.2 Direct material costs: This is an itemization, including material invoice, of the quantity and cost of additional materials reasonable and necessary to perform the change in the Work. The unit cost shall be based upon the net cost after all discounts or rebates, freight costs, express charges, or special delivery costs, when applicable. No lump sum costs will be allowed except when approved in advance by the Architect. Discounts and rebates based on prompt payment need not be included, however, if the Subcontractor offered but the Owner declined the opportunity to take advantage of such discount or rebate. § 7.5.3 Construction equipment usage costs: This is an itemization of the actual length of time that construction equipment appropriate for the Work will be used solely on the change in the Work at the site times the • applicable rental cost as established by the lower of the local prevailing rate published in The Rental Rate Blue Book by Data Guest, San Jose, California, as modified by the AGC/WSDOT agreement or the actual rate paid to an unrelated third party as evidenced by rental receipts. Actual, reasonable mobilization costs are permitted if the equipment is brought to the Site solely for the change in the Work. If equipment is required for which a rental rate is not established by The Rental Rate Blue Book, an agreed rental rate shall be established for the equipment, which rate and use must be approved by the Architect prior t performing the work." If more`than • one rate is applicable, the best available rate will be utilized. The rates in effect at the time of the: performance of the changed Work are the maximum rates allowable for equipment of modern design 'and in good working condition and include full compensation for furnishing all fuel, oil, lubrication, repairs, maintenance; and' :.' insurance to the same extent as the comparable Blue Book or fair market rate. Equipment not of modern design and/or not in good working condition will have lower rates. Hourly, weekly, and/or monthly rates, as appropriate, will be applied to yield the lowest total cost. When the rate payable does not include fuel, • lubricants, standard maintenance and servicing, such operating costs shall be reimbursed based upon actual costs. When rental rates payable do not include fuel, lubrication, maintenance and servicing, as defined as operating costs in the reference, such operating costs shall be reimbursed based on actual costs. The rate for • 1 equipment necessarily standing by for future use on the Work shall be 50% of the rate established above. § 7.5.4 Lower - tier Subcontractor costs: These are payments the •Subcontractor makes to lower -tier Subcontractors for changed Work perform ed by such Subcontractors. The lower -tier Subcontractors' cost of • changed Work shall be determined in the same manner as prescribed in this Section 7.5. $ 7.5.5 Subcontractors' Fee: This is the allowance for all combined overhead, profit and other costs, including all office, home office and site overheadjincluding project manager, project engineer, other engineers, project foreman, estimator, superintendent and their vehicles), taxes (except for sales tax), employee per diem, • subsistence and travel costs, warranty, safety costs, quality control/assurance, purchasing, small or hand tool (a . tool that costs $500 or less and is normally furnished by the performing contractor) or expendable charges, preparation of as-built drawings, impact on unchanged Work, Claim preparation, and delay and impact costs of any kind, added to the total cost to the Owner of any Change Order, Construction Change Directive, Claim or any other claim of any kind on this Project. No Fee shall be due, however, for direct settlements by the Owner of Subcontractor claims after Substantial Completion. The Fee shall be limited in all cases to the amount ; specified in the Subcontractor's bid to the Contractor and approved by the Owner. If not amount is specified, the following schedule: .1 The Subcontractor shall receive 12% of the cost of any materials supplied or work properly performed by the Subcontractor's own forces. . 410) AIA Document A201'' — 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 38 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC '(2273420147) • .2 The Subcontractor shall receive 7% of the amount owed less fee) direct/ ( ) Y to a lower -tier Subcontractor for materials supplied or for work properly performed by that Subcontractor. .3 Each lower -tier Subcontractor shall receive 10% of the cost of any materials properly supplied or work performed by its own forces. .4 Each lower -tier Subcontractor shall receive 6% of the amount (less fee) it properly incurs for . materials supplied or work properly performed by its Subcontractors of any lower tier. .5 The cost to which this Fee is to be applied shall be determined in accordance with Section 7.5.1 through 7.5.4. If a change in the Work involves both additive and deductive items, the appropriate Fee allowed will be added to the net difference of the items. If the net difference is negative, no Fee will be added to the negative figure as a further deduction. • 7.5.6 Cost of chan . e in insurance or bond . remium. • This is normall added to the sum of the above and is defined as: .1 Subcontractors' liability insurance: The actual cost (expressed as a percentage submitted with the certificate of insurance provided under Section 11.7.1, and subject to audit) of any changes in the Subcontractor's liability insurance arising directly from the changed Work: and .2 Public works bond: The actual cost (expressed as a percentage and subject to audit) of the change in the Subcontractor's premium for the Subcontractor's statutorily required performance and payment bond arising directly from the changed Work. Upon request, the Subcontractor shall provide the Owner with supporting documentation from its insurer or surety of any associated cost incurred. • 7.5.7 The cost of an chan • ed Work or of an other increase or decrease in the Contract Sum includin • a , Claim, shall not include, among other things, consultant costs, attorneys' fees, or claim preparation expenses. • 7.6 If after the date of the , arties' execution of an Amendment the Contractor's . erformance ri . hts or ID obligations under the Contract for that Component are affected by: (i) a change in any applicable law or in the written interpretation thereof, or (ii) a change in or issuance of any applicable permit, delays, then the Owner and Contractor shall agree, in accordance with the Contract Documents, to the resultant change in the Contract Time and/or GMP. ARTICLE 8 TIME § 8.1 DEFINITIONS . § 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of all the Work. Component Time is'the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of a • Component of the Work. , § 8.1.2 The date of commencement of the Work is the date established by the Owner in its conditional notice to proceed issued for each Component of the Work. in4he-Agfeemel.Work on the site may.begin for a Component when the Contractor complies with the requirements of the notice to proceed. The date of commencement of all the Work is the date established by the Owner in its first notice to proceed issued for the initial Component of the Work. § 8.1.3 The date of Substantial Completion (or a designated portion thereof) is the date certified by the Architect and set by the Owner in accordance with Section 9.8. § 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defimed. . AIA Document A201 n —1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) . . . III i • ., § 8,2 PROGRESS AND COMPLETION 1 § 8.2.1 Time limits stated in the Contract Documents related to the Contractor's Construction Schedule are of the essence of the Contract. By executing the Agreement the Contractor confirms that the Contract Time is a reasonable period for performing all the Work. By executing an Amendment, the Contractor confirms that the Component Time is a reasonable period for performing the Work of that Component. . § 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of commencement is established by the Contract Documents or a notice to.proceed given by the Owner, the Contractor shall notify the Owner in writing not Less than five days or other agreed period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other security interests. § 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion of all the work within the Contract Time, Substantial Completion of a Component within the Component Time, and Final Completion as specified in the Contract Documents. _ 6 8.2.4 THE TIMELY COMPLETION OF THIS PROJECT IS ESSENTIAL TO THE OWNER. The Owner will incur serious and substantial damages if Substantial Completion of the Work does not occur within the .Component Time; however, it would be difficult if not impossible to determine the amount of such damages, which could include, for example, personnel and overtime costs, transportation costs, govemmental fees, storage costs, portable rental costs, loss of use, and lost opportunities. Consequently, provisions for liquidated damages as a reasonable estimate of loss may be included in the Contract Documents. The Owner's right to liquidated damages is not affected by partial completion, occupancy, or beneficial occupancy. The Contractor shall furnish sufficient forces, construction plant and equipment, and shall work such hours, including. night 0 - shifts, overtime operations and weekend and holiday work as may be necessary to insure the production of the Work in accordance with the date of Substantial Completion and the approved Contractor's Construction Schedule. If the Contractor fails to perform in a timely manner in accordance with the Contract Documents and, through the fault of the Contractor or Subcontractor(s) fails to meet the Contractor's Construction . Schedule, the Contractor shall take such steps as may be necessary to inunediately improve its progress by increasing the number of workers, shifts, overtime operations or days of work, or by other means and/or methods all without additional cost to the Owner. • 8.2.5 If the Work is to be • erformed in Com a onents or .bases with se p arate dates set forth for Substantial Completion elsewhere in the Contract Documents, then the specified liquidated damages shall apply separately to each such Component or phase unless otherwise specified. . 8.2.6 Any provisions in the Contract for liquidated damages are intended to be the sole and exclusive remedy of the Owner, and the sole and exclusive liability of the Contractor, for the failure to timely complete the . Project as set forth in the agreed Milestone Schedule and in lieu of the liability of the Contractor for special, incidental and consequential damages (such as cost of capital and loss of profits, use and revenue) sustained by . the Owner but shall not relieve or release the Contractor from liability for any and all damage or damages .suffered by the Owner due to other breaches of the Contract or suffered by separate contractors. . . § 8.3 DELAYS AND EXTENSIONS OF TIME § 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work Eby an actor neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or ( by changes ordered in the Work only to the extent reflected in approved Change Orders providing for specific extensions of the Component Time, or (3) by unanticipated, abnormal weather (see Section 4.3.7), or (4) by unexpected industry-wide labor disputes, fire, unusual delay in deliveries governmental delays (including unanticipated permit delays not caused by the Owner), unavoidable casualties or other causes beyond the Contractor's control, or (5) by delay authorized by the Owner pending mediation . . and arbitratieinlitigation, or (6) by other causes which the Architect determines may justify delay, then the 0 AIA Document A201'" -1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958,1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 40 reproduction or distribution of this Ale Document or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14 :41 on 2/2/2009 under Order No. 1000354960_1 which . expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) Contract TimeComponent Time shall be extended by Change Order for such reasonable time, limited to the change in the actual critical path of the Contractor's Construction Schedule directly caused thereby, as the Architect and the Owner may determine consistent with the provisions of the Contract Documents. In no event, however, shall the Contractor be entitled to any extension of time absent proof of (1) delay to an activity on the critical path of the Contract Schedule, so as to actually delay the Component Time beyond the date of Substantial Completion, or (2) delay transforming an activity into the critical path of the Contract Schedule, so as to actually delay the Project completion beyond a date of Substantial Completion. § 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Sections 4.3 through 4.7 and shall include any proposed changes in the Contractor's Construction Schedule or the Component Time a description of any event that could delay performance or supplying of any item of the Work, the expected duration of the delay, the anticipated effect of the delay on the Contractor's Construction Schedule, and the action being taken to correct the delay situation . That the Owner or the Architect may be aware of the occurrence or existence of a delay through means other than the Contractor's written notification shall not constitute a waiver of a timely or written notice or Claim. - • § 8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. .1 If the delay was not caused by the Owner, the Contractor, a Subcontractor of any tier, or the Architect, or anyone acting on behalf of any of them, the Contractor is entitled only to an increase in the Component Time in accordance with the Contract Documents but not an increase in the GMP. If the delay was caused by the Contractor, a Subcontractor of any tier, or anyone acting on behalf of any of them, the Contractor is not entitled to an increase in the Component Time or in the Contract Sum. The Contractor shall not recover damages, an equitable adjustment • or an increase in the Contract Sum or Component Time from the Owner where the Contractor .. could have reasonably avoided the delay by the exercise of due diligence. The Contractor shall be able to recover an increase in the Contract Sum or GMP, provided it is consistent with the terms of the Contract Documents, only if the delay was in the critical path, was unreasonable and was caused by the Owner or anyone acting on its behalf as permitted under the Contract Documents. The Owner is not obligated directly or indirectly for damages, an equitable adjustment, or an increase in the Contract Sum for any delay suffered by a Subcontractor of any tier that does not increase the Component Time. .2 In the event the Contractor (including any Subcontractors of any tier) is held to be entitled to damages from the Owner for delay beyond the payment permitted in Section 7.5.5, it is agreed that the total combined damages to the Contractor and any Subcontractors of any tier for each day of delay shall be limited to the same daily liquidated damage rate specified in the Contract Documents due the Owner for the Contractor's delay in achieving Substantial Completion. By submitting its Proposal, the Contractor represents that it would be difficult if not impossible to determine the amount of anv delay damages due it, that it has taken this provision for liquidated damages into consideration in its bid, and that these liquidated damages are a reasonable estimate • of its loss. No damages will be allowed for any time prior to fourteen (14) days before receipt of written notice of the Claim of the delay pursuant to Section 4.4.2. .3 The Contractor shall not in any event be entitled to damages arising out of actual or alleged loss of efficiency; morale, fatigue, attitude, or labor rhythm; constructive acceleration; home office • - overhead; expectant underrun; trade stacking; reassignment of workers; rescheduling of work, concurrent operations; dilution of supervision; learning curve; beneficial or joint occupancy; logistics; ripple; season change; extended overhead; profit upon damages for delay; impact damages; cumulative impact; or similar damages. Any effect that such alleged costs may have upon the Contractor or its Subcontractors of any tier is fully compensated through the Cost of the Work and the percentage Fee on Change Orders paid through the Agreement and Section 7.5.5. .4 The Contractor shall not be entitled to any adjustment in the Component Time or the Contract Sum, or to any additional payment of any sort, by reason of the loss or the use of any float time, including time not on the critical path or time between the Contractor's anticipated completion AIA Document A201 r" - 1997. Copyright O 1911, 1915, 1918, 1925,1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) I I . I ID 1 date and the end of the Component Time whether or not the float time is described as such on p the Contractor's Construction Schedule. ARTICLE 9 PAYMENTS AND COMPLETION . § 9.1 CONTRACT SUM § 9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. §9.2SCHEDnEOFVAiUES . § 9.3 APPLICATIONS FOR PAYMENT § 9.3.1 Progress payments will be made monthly for work duly certified, approved, andserformed during the calendar month preceding the application. These amounts are paid in trust to the Contractor for distribution to Subcontractors to the extent and in accordance with.the approved Application for Payment."n -days • . • § 9.3.1.2 Such applications may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier, unless such Work has been performed by others whom the Contractor intends to pay. A payment request shall not be valid unless it . complies with the requirements of the Contract Documents. § 9.3.1.3 Payments to Subcontractors. No payment request shall include amounts the Contractor does not intend to pay to a Subcontractor because of a dispute or other reason: If, after making a request for. payment - but before paying a Subcontractor for its performance covered by the payment request, the Contractor discovers that part or all of the payment otherwise due to the Subcontractor is subject to withholding from the Subcontractor under the subcontract for unsatisfactory performance, the Contractor may withhold the amount . as allowed under the subcontract, but it shall give the Subcontractor, the Owner and the Architect written notice of the remedial actions that must be taken as soon as practicable after determining the cause for the withholding but before the due date for the Subcontractor payment, andpay the Subcontractor within eight (8) working days after the Subcontractor satisfactorily completes the remedial action identified in the notice.., § 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of project- specific materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in writing and in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. § 9.3.3 The Contractor warrants that title all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application • AIA Document A201 —1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American nit Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 42 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the i � maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. . User Notes: Yakima 15170848_2.DOC (2273420147) for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. 4 9.3.4 Retainage. • • 9.3.4.1 In accordance with RCW 60.28 a sum e ' ual to five ' ercent 5% of each a . 'roved A • ' lication for Payment shall be retained. After award of a Contract for public improvements, or work for which retained • percentages are required to be reserved under the provision of RCW 60.28, the Owner shall require the Contractor to exercise, in writing, one of the options listed below: .1 Retained percentages will be retained in a fund by the Owner not subiect to release until sixty (60) days following the Final Acceptance of the Work as completed; or .2 Deposited by the Owner in an interest - bearing account in a bank, mutual savings bank or savings and loan association and not subject to release until sixty (60) days following Final Acceptance of the Work as completed; or .3 Placed in escrow with a bank or trust company and not subject to release until sixty (60) days following the Final Acceptance of the Work as completed. .4 ` If the Contractor provides a bond in place of retainage, it shall be in an amount equal to 5% of - the GMP plus change orders. The minimum requirements for the bond are that it must be on a form acceptable to the. Owner, with an A.M. Best rating of "A" or better and a financial rating of no less than "VIII;" signed by a surety registered by the Washington State Insurance Commissioner and on the currently authorized insurance list published, by the Washington State Insurance Commissioner; additional requirements as established by the Owner may be applied. § 9.3.4.2 The Contractor or a Subcontractor may withhold payment of not more than 5% as retainage from the monies earned by any Subcontractor or Sub - subcontractor per RCW 60.28, provided that the Contractor pays interest to the Subcontractor at the same interest rate it receives from its reserved funds. If requested by the Owner, the Contractor shall specify the amount of retainage and interest due a Subcontractor. § 9.4 CERTIFICATES FOR PAYMENT § 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is.in accordance with the Contract Documents. The foregoing representations are 1 subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial and Final Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 9.5 DECISIONS TO WITHHOLD CERTIFICATION § 9.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the Owner required by AIA Document A201 T ' " - - 1997. Copyright CD 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • • I Section 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Section 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Owner may, with or without the Architect's concurrence, withhold payment, and the Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence or subsequent observations, it may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss for which the Contractor is responsible, including, loss resulting from acts and omissions described in Section 3.3.2, because of: .1 defective Work not remedied; .2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; .3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; .4 . reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or another contractor; .6 reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; . .7 unsatisfactory prosecution of the Work by the Contractor, including but not limited to persistent failure to carry out the Work in accordance with the Contract Documents;: .8 delay by the Contractor and/or its Subcontractor(s) of any tier, or failure to comply with the Contractor's Construction Schedule requirements; • .9 failure to submit affidavits pertaining to wages paid as required by statute; .10 .failure to submit a properly updated Construction Schedule; • .11 failure to comply with a requirement of the Contract Documents in which the. Owner has reserved the right to withholdpayment; • .12 liquidated damages; .13 failure to properly maintain as builts; and { .14 failure to properly submit certified payrolls. - § 9.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. • �, • 9.5.3 Pursuant to RCW 39.12 "Prevailin . Wa• es on Public Works " the Contractor will not receive an payment until the Contractor and all Subcontractors of anv tier for whom payment is sought have submitted state - approved "Statements of Intent to Pay Prevailing Wage" to the Owner. The statement must have the approval of the Industrial Statistician of the Department of Labor and Industries before it is submitted to the Owner. The statement must include the Contractor's registration number, the number of workers in each trade classification, and the applicable 'wage rate for each trade listed. The Contractor agrees to provide each Subcontractor of any tier with a schedule of applicable prevailing wage rates. The Contractor and the respective Subcontractors of any tier shall pay all fees required by the Department of Labor and Industries, including fees for the approval of the "Statement of Intent to Pay Prevailing Wages." Approved copies of the • "Statement of Intent to Pay Prevailing Wages" must be posted where workers can easily read them. § 9.6 PROGRESS PAYMENTS - i § 9.6.1 After the Architect has issued a Certificate for Payment, and it has been approved by the Owner, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall :,o netify-the-Ar-ehitest. The Owner will make a progress payment within thirty (30) days of its receipt of the Architect's Certificate for Payment. The Owner shall be entitled to withhold payment to the extent provided by the Contract Documents, notwithstanding the issuance of a Certificate for Payment. I AIA Document A201 TM - 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961. 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Iit. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 44 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5 /2009, and is not for resale. - User Notes: Yakima 15170848_2.00C (2273420147) I - tl 9.6.2 T he Contractor shall promptly each Subcontractor, upon payment from the Owner, out of on recei t of § P PYPa Y P receipt P the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in a similar manner. If the Contractor does not receive payment for any cause that is not the fault of a particular Subcontractor but does receive payment for materials supplied or work performed by that Subcontractor, the Contractor shall pay that Subcontractor in accordance with its subcontract for its satisfactorily completed work, less the retained percentage. § 9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect - and Owner on account of portions of the Work done by such Subcontractor. § 9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. § 9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6.3 and 9.6.4. § 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the 1 Owner shall not constitute acceptance of Work : - • - -: • .. • _ _ • - ! : _ - •• _ • § 9.6.7 Unless the Contractor provides,the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall, be held by the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under contract with the Contractor for which payment was made by the Owner. Nothing contained herein shall require money to be placed in a separate account and not commingled with money of the Contractor, shall create any fiduciary liability or tort liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this provision. § 9.7 FAILURE OF PAYMENT :... _ . § 9.7:1 If the Architect flees-net-improperly fails to issue a Certificate for Payment, through no fault of the Contractor, within coven fourteen (14) days after receipt of the Contractor's timely and complete Application - for Payment under Section 9.3.1.2 (subject to the approved payment schedule), or if the Owner does not pay the Contractor within seven-fourteen (14) days after the date established in the Contract Documents the amount due and owing to the Contractor- - - . -.. . - - - .. • - - . • . ': -, then the Contractor may, upon coven fourteen (14) additional days' written notice to the Owner and Architect, stop the Work until payment of the amount owing has been received. The Contract TimoComponent Time shall be extended . appropriately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of shut -down, delay and start-u . , :. - - - _ , , • - - - - - , . _ : - .. - - § 9.8 SUBSTANTIAL COMPLETION § 9,8,1.1 Substantial Completion is the stage-in the progress of the Work when the Work or designated portion, thereof designated and approved by the Architect and Owner is sufficiently complete in accordance with the " • Contract Documents so that the Owner can fully occupy or utilize the Work, or the designated portion thereof, for its intended use. All Work other than incidental corrective or punch list work shall be completed, including but not limited to the following: - (1) Obtain applicable occupancy permits. pressure vessel permits, elevator permits, and similar approvals or certificates by governing authorities and franchised services, assuring the Owner's full access and use of completed Work. (2) Submit the Contractor's punch list of items to be completed or corrected and written request for inspection. AIA Document A201' —1997. Copyright© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architeds. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) , _ , . . . ill (3) Complete final start-up, testing, and commence instruction and training sessions on all mayor building systems including HVAC and controls; intercom, data communication. fire alarm, • telephone, fire sprinkler, security and clocks and establish a Date of Commissioning. (4) Make final changeover of locks and transmit new keys to the Owner, and advise the Owner of the changeover in security provisions. (5) Discontinue or change over and remove temporary facilities and services from the project site. 1 (6) Complete appropriate cleaning. (7) Advise the Owner on coordination of shifting insurance coverages, including proof of extended coverages as required. The Work is not Substantially Complete unless the Architect reasonably judges that the Work can achieve Final Completion as specified in the Contract Documents, appropriate cleaning has occurred, all designated systems and parts are commissioned and usable, including balancing of the HVAC system, utilities are connected and operating normally and training sessions have occurred, all required temporary occupancy permits, pressure • • vessel permits, elevator permits and similar approvals or certificates by governing authorities, assuring the Owner's full access to the Work have been issued, O &M manuals have been submitted for review, and the . Work is accessible by normal vehicular and pedestrian traffic routes. The fact that the Owner may occupy the { - Work or a designated portion thereof does not indicate that the Work is Substantially Complete or is acceptable in whole or in part, nor does such occupation toll or change any liquidated damages due the Owner. I , • 9.8.1.2 Date of Commissionin . of 01 erational S stems. The s stems of the Work so desi_nated in the , Contract Documents are considered "Operational Systems." When the Contractor considers that the Operational Systems are complete and fully functional, up and running and ready for normal operation and any ' functional performance testing as may be specified overall or for any Component, and after all pre - j commissioning checklists have been completed, the Contractor shall so notify the Architect and the Owner in writing a minimum of thirty (3O) days prior to the Date of Substantial Completion for that portion or . • Component as fixed in the Contract Documents. The Architect will then schedule a pre - commissioning ,, inspection and observe the functional performance tests of these systems identified in the Contract Documents . to determine' whether the Operational Systems are complete and ready for normal operation. If the Architect's . inspection discloses that the Operational Systems are not Substantially Complete or that any item is not in • accordance with the requirements of the Contract Documents, the Contractor shall expeditiously, and before the Date of Commissioning, complete or correct such item upon notification by the Architect. The Contractor shall . then submit a request for another inspection by the Architect to determine completion of the Operational - Systems and pay the costs associated with the reinspection, including fees of any commissioning agent and the Architect and its consultants. As each of the Operational Systems is determined to be complete, the Architect • will notify the Owner in writing, which shall establish the Date of Commissioning. Training of Owner personnel on site shall not begin until the Date of Commissioning and shall be conducted prior to departure of the installing entity from the site by appropriate Subcontractor personnel who are knowledgeable with the construction and operation of each system. Warranties on the Operational Systems required by the Contract Documents shall commence on the Date of Substantial Completion, unless otherwise provided, but the • . Contractor shall retain the responsibility to maintain systems until Final Acceptance. The Date of Commissioning shall not have an effect on the duties of the parties at Substantial Completion. § 9.8.2 When the. Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the.Contractor'shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment. The Contractor shall proceed promptly to complete and correct items on the list. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. § 9.8.3 Upon receipt of the Contractor's list, the Architect and, at its option, the Owner will make an inspection I to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or • j designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of . • { AIA Document A201 ' — 1997. Copyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American . I i it. Institute of Architects. All rights reserved. WARNING; This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 46 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which �i expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC • (2273420147) i . . Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the P P P Y Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. If the Owner or Architect determines that the Work or designated portion is not substantiallv complete, the Contractor shall expeditiously complete the Work or designated portion, again request an inspection, and pay the costs associated with the reinspection. § 9.8.4 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which, upon approval of the Owner, shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion, except that warranties for HVAC equipment shall commence with the Owner's acceptance of the Commissioning report. The Contractor shall attach and submit with the executed Certificate of Substantial Completion a written list of each outstanding and unresolved Claim: any Claim not so submitted and identified, other than retainage and the undisputed balance of the Contract Sum, shall be deemed waived and abandoned. If the Owner or Architect determines that the Work or designated portion is not substantially complete, the Contractor shall expeditiously complete the Work or designated portion, again _ request an inspection, and pay the costs associated with the reinspection, including Architect and consultant fees. • § 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Any items not included by the Architect but required or necessary for Final Completion of the Contract shall be supplied and installed by the Contractor as a part of the Contract Sum, notwithstanding their not being recorded by the Architect. Upon sash • written acceptance of the Certificate of Substantial Completion by the Owner and the Contractor, and upon the Contractor's Application for Payment ..- - • • - • - - , •,- , the Owner shall make payment of retainage . 11111 • • - : ::: ' : - : as provided in the Contract Documents. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract _Documents. No further payment will be due or owing until the payment following Final Completion. • 9.8.6 The Contractor shall .re .are continue to monitor with the Architect and cause to be completed all punchlists with respect to the activity of each Subcontractor and report weekly to the Owner on outstanding punchlist items. Beginning ninety (90) days before the scheduled date of Substantial Completion, the Contractor shall prepare reports weekly, identifying items to be completed in order to obtain required certificates of occupancy and make recommendations to the Owner with respect to effectuating the earliest possible completion. • § 9.9 PARTIAL OCCUPANCY OR USE § 9.9.1 The Owner may, upon written notice to the Contractor, take possession of, operate, occupy or use any completed or partially completed portion of the Work at any stage and tim- • - - - •_ . - - - Contest . Unless otherwise agreed in writing, such possession, use or operation shall not be deemed an acceptance of any_portion of the Work, nor accelerate the time for any payment to the Contractor under the Contract, nor prejudice any rights of the Owner under the Contract or under any insurance, bond, guaranty or other requirement of the Contract, nor relieve the Contractor of the risk of loss or any of its obligations under the Contract, nor establish a Date of Substantial or Final Completion, nor establish a date for termination or partial termination of the running of liquidated damages, nor constitute a waiver of any Owner claims. If the Contractor fails to achieve Substantial Completion of a Component within the Component Time, Substantial AIA Document A201 TM — 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The America Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC - (2273420147) • • • Completion of all the Work within the Contract Time, or fails to achieve Final Completion of the Work as specified in the Contract Documents, the Owner may take possession of, use or operate all or any part of the Work without an increase in the Contract Sum, the Component Time, or the Contract Time on account of such possession or use. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the Architect as provided under Section 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. _ - . - - - . of the Architcct. § 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. § 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. § 9.10 FINAL COMPLETION AND FINAL PAYMENT § 9.10.1 Final Completion. • 9.10.1.1 The Contractor shall cause . unch list items to be com i leted before Final Com I letion or within such reasonable period as may be required to correct the item (in the event that the punch list items are, because of their nature, incapable of correction during that period) provided that the Contractor commences to correct the item within that period and thereafter diligently and in good faith pursues the corrective action to completion. If, at thirty (30) days after the Date of Substantial Completion, the Owner considers that the punch list items are unlikely to be completed by Final Completion or the date specified in the Contract Documents, the Owner may upon seven (7) days' written notice to the Contractor, take over and perform some or all of the punch list items. If the Contractor fails to correct the deficiencies within the time period required, the Owner may deduct 'the 1111 actual cost of performing this punch list work, including any design costs, plus 15% to account for the Owner's transaction costs from the Contract Sum. § 9.10.1.2 Upon receipt of written notice from the Contractor that the Work is ready for final inspection and acceptanc - ..• :.::. - _ - - . - .. -. • . . - - , the Architect will promptly make such inspection accompanied by the Contractor (if requested by the Architect). If the Architect determines that some or all of the punch list items are not accomplished, the Contractor shall be responsible to the Owner for all costs, including reinspection fees, for any subsequent Architect's'inspection to determine compliance with the punch list. and the Architect finds all punch list items complete and the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly Payment-stating notify the Owner and the Contractor in writing.that to the best of the Architect's knowledge, information and belief, and on the basis of the Architects on -site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents :. The Architect's fmal Certificate for Payment will constitute a further representation that conditions listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. • 9.10.1.3 Notwithstandin • an •rovision herein to the contr. the Contractor is liable for and the Owner ma . deduct from any amounts due the Contractor, all Architect, engineer or other design consultant fees incurred by the Owner for services performed after the scheduled date of Final Completion of all the Work, whether or not those services would have been performed prior to that date had Final Completion been achieved in a timely manner. • $ 9.10.1.4 When the Architect finds that the Work has been concluded, a final occupancy permit has been issued, any commissioning process or validation process have been successfully concluded and the report accepted by the Owner, and the Contractor has submitted all the items in Section 9.10.2.1 to the Architect, the Contractor may submit a final Application for Payment. The Architect will then promptly issue a final Certificate for Payment stating that the entire balance found to be due the Contractor and noted in said final • ! AIA Document A201 - -1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American nit. Institute of Architects. All rights reserved. WARNING: Th is AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 48 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848 2.DOC (2273420147) . _ Certificate is due and payable. The Architect's final Certificate for Payment shall establish the date of Final Completion upon its execution by the Owner. 6 9.10.1.5 "Final Completion" will be attained when the Contractor has accomplished the following_ (1) Complete all requirements listed in Section 9.8 for Substantial Completion. (2) Complete all remaining punch list items and remaining Work, and obtain the Architect's recommendation and the Owner's approval that all Work is complete. , (3) Obtain permanent occupancy permits. (4) Submit final change order and final Application for Payment. 15) Submit all operation and maintenance manuals required by the Contract. (6) Deliver tools, spare parts, extra stock of material and similar physical items to the Owner as required by the Contract Documents. (7) Complete final cleaning, including cleaning after punchlist work. (8) Complete instruction and training sessions on all major building systems including HVAC, intercom, data communications, fire alarm, telephone, fire sprinkler, emergency power, security and clocks. (9) Submit executed warranties and guarantees. . (10) Make final changeover of locks and transmit new keys to the Owner, and advise the Owner of the changeover in security provisions. (11) Discontinue or change over and remove temporary facilities and services from the project site. (12) Advise the Owner on coordination of shifting insurance coverages, including proof of extended coverages as required. (13) Submit all information and data requested in technical specifications for use in the commissioning report. . § 9.10.2 Final Acceptance and Payment. . § 9.10.2.1 Neither fFinal payment - : - -- . - • • - : - •• • • ,: : t - _ - .:: shall not become due until after the Owner's City Council has formally accepted the Project ( "Final Acceptance'). To achieve Final Acceptance, the Architect must have issued a final Certificate for Payment under Section 9.10.1, Final Completion must have occurred, and the Contractor ust have submitted to the Program Manager the following: - (1) an affidavit that all payrolls, bills for materials and equipment and other indebtedness connected with the Work for . which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, except for any claims that are specifically identified on the affidavit (Affidavit of Payment of Debts and Claims, AIA form G706 or equivalent), . (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least thirty (30) days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, - (4) consent of surety, if any, to final payment (AIA form G707 or equivalent), and (5), i f required by the Owne , other data establishing payment or satisfaction of or protection against obligations, such as 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 Owner (Contractor's Affidavit of Release of Liens, AIA form G706A or equivalent). If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees:, (6) pursuant to RCW 39.12.040, an "Affidavit of Wages Paid" from the Contractor and from each Subcontractor of any tier, with the fees paid by the Contractor or Subcontractor, AIA Document A201 TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) . • ,. . . . • • (7) a letter from the Architect indicating that the Work is complete and recommending Final Acceptance of the Project by the Owner, . I ' (8) certification that the materials in the Work are "lead -free" and "asbestos- free," . (9) all warranties, guarantees, training, manuals, operation instructions, certificates, spare parts, maintenance manuals and stock, specified excess material, as -built drawings and other documents, training or items required by the Contract Documents or local governmental entities, and • , (10) a certified statement that the Contractor has closed all necessary permits or otherwise met the • requirements of all governing jurisdictions related to this project, including but not limited to all city or county departments, health districts and utility districts, provided to Owner with a copy of all closed or signed off permits. • 9.10.2.2 Pursuant to RCW 60.28 "Lien for Labor Materials Taxes on Public Works " com • letion of the Contract Work shall occur upon Final Acceptance. . 1 § 9.10.3 If, after Substantial Completion of the Work, 4Final eCompletion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so • confirms, the Owner shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and § 9,10.4 Release of Retainage: The retainage will be held and applied by the Owner as a trust fund ina manner - 41111 required by RCW 60.28. Release of the retainage will be processed in ordinary course of business upon the - expiration of sixty (60) days following Final Acceptance of the Work by the Owner provided that'no notice of ; lien shall have been given as provided in RCW 60.28, that no claims have been brought to the attention of the Owner and that the Owner has no claims under this Contract; and provided further that release of retention has been duly authorized bythe State. The following items must be obtained prior to release of retainage: pursuant to RCW 60.28, a certificate from the Department of Revenue; pursuant to RCW 50.24, a certificate from the • . • Department of Employment Security; and appropriate information from the Department of Labor and • ' Industries. § 9.10.5 Waiver of Claims 4 9.10.5.1 Final Payment by Owner. The making of final payment shall constitute a waiver of Claims by the . Owner except those arising from: • .1 liens, statutory retainage, Claims, security interests or encumbrances arising out of the Contract ` • , and unsettled; • _ .2 failure of the Work to comply with the requirements of the Contract Documents; or . I .3 terms of special or specific warranties required by the Contract Documents. - • § 9.10.5.2 Final Payment to Contractor. Acceptance of. final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and ' 1 identified by that payee as unsettled and attached to at the time of the Contractor's final Application for Payment. _ - § 9.10.5.3 Change Orders. The execution of a Change Order shall constitute a waiver of Claims by the Contractor arising out of the Work to be performed or deleted pursuant to the Change Order, except as specifically described in the Change Order. Reservations of rights will be deemed waived and are void unless the reserved rights are specifically described in detail to the satisfaction of the Owner and are initialed by the Owner. . 4110 AIA Document A201 —1997. Copyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American !nit Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and Intemational Treaties. Unauthorized 50 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which 1 expires on 5/5/2009, and is not for resale. - User Notes: Yakima 15170848_2.DOC (2273420147) ' 9.10.6 t o furnish release required Owner, the 5 If a Subcontractor of any tier refuses sh a rel ase or waiver r q d by the , h Own er may (_a) retain in the fund, account, or escrow funds in such amount as to defray the cost of foreclosing the liens of such claims and to pay attorneys' fees, the total of which shall be no less than 150% of the claimed amount, or (b) accept a bond from the Contractor, satisfactory to the Owner, to indemnify the Owner against such lien. If any such lien remains unsatisfied after alayments from the retainage.are made, the Contractor shall refund to the Owner all moneys that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. - • 9.11.1 The Contractor shall maintain books led •ers records documents bids estimates invoices correspondence, logs, schedules, emails, electronic data and other evidence relating or pertaining to the costs and/or performance of the Contract ( "records" to such extent and in such detail as will properly reflect and fully support compliance with the requirements of the Contract Documents and with all costs, charges and other amounts of whatever nature. The Contractor shall preserve such records for a period of three (3) years • following the date of Final Acceptance under the Contract and for such logger period as may be required by any other provision of the Contract. Within seven (7) days of the Owner's request, the Contractor agrees to make available at the office of the Contractor during normal business hours all records for inspection, audit and reproduction (including electronic reproduction) by the Owner or its representatives; failure to fully comply with this requirement shall constitute a material breach of contract. • 9.11.2 Each Subcontractor of an tier shall maintain books led • ers records documents bids estimates correspondence, logs, schedules, electronic data and other evidence relating or pertaining to the costs and/or performance of the Contract ( "records ") to such extent and in such detail as will properly reflect and fully support compliance with the requirements of the Contract Documents and with all costs, charges and other amounts of whatever nature. Each Subcontractor shall preserve such records for a period of three (3) years _ following the date of Final Acceptance under the Contract and for such longer period as may be required by any other provision of the Contract. Within seven (7) days of the Owner's request, a Subcontractor shall make available at the office of the Subcontractor during normal business hours all records for inspection, audit and • : reproduction (including electronic reproduction) by the Owner or its representatives; failure to do so shall • constitute a waiver of all claims by that Subcontractor. • • • 9.11.3 The Contractor au ees on behalf of itself and Subcontractors of an tier that an ri • is under RCW 42.17.260, "Disclosure," will commence at Final Acceptance, and that the invocation of such rights at any time shall initiate an equivalent right to disclosures from the Contractor and Subcontractors of any tier for the benefit • _ of the Owner. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY § 10.1 SAFETY PRECAUTIONS AND PROGRAMS § 10.1.1 The Contractor shall be solely and completely responsible for conditions of the work site, including safety of all persons and property, during performance of the Work. The Contractor shall maintain the Work site and perform the Work in a manner that meets statutory and common -law requirements for the provision of a safe place to work. This requirement shall apply continuously and not be limited to working hours. Any review by the Owner or the Architect of the Contractor's performance shall not be construed to include a • review of the adequacy of the Contractor's safety measures in, on or near the site of the Work. The Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance . of the Contract. • § 10.1.2 No action or inaction of the Owner or the Architect relating to safety or property protection or a violation thereof will: (1) relieve the Contractor of sole and complete responsibility for the violation and the correction thereof, or of sole liability for the consequences of said violationj2) impose any obligation upon the Owner or Architect to inspect or review the Contractor's safety program or precautions or to enforce the Contractor's compliance with the requirements of this Article 10; (3) impose any continuing obligation upon the Owner or Architect to ensure the Contractor performs the Work safely or to provide such notice to the Contractor or any other person or entity; (4) affect the Contractor's sole and complete responsibility for AIA Document A201 — 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order. No. 1000354960_1 which expires on 5/5/2009, and is not for resale. - User Notes: Yakima 15170848_2.DOC (2273420147) • • . . . . 40 1 performing the Work safely or the Contractor's responsibility for the safety and welfare of its employees; or (5) affect the Contractor's responsibility for the protection of property, staff and the general public. 1 . § 10.2 SAFETY OF PERSONS AND PROPERTY § 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: .1 employees on the Work and other persons who may be affected thereby; • .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub- subcontractors; and - .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. . § 10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. § 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the • Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. ...: . - - - - ..: .... • .. ..• : The use of explosives is not permitted on this Project. • § 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under i property insurance required by the Contract Documents) to property referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub - subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the ` Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss: attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly employed by either of them, or by anyone • for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Section 3.18. § 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents: This person shall be the Contractor's superintendent unless otherwise ' designated by the Contractor in writing to the Owner and Architect. § 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. - I § 10.2.8 At all times until the Owner's occupancy of the Work or a designated portion of the Work, the Contractor shall protect from damage, weather, deterioration; theft, vandalism and malicious mischief all materials, equipment, tools, and other items incorporated or to be incorporated in the Work or designated portion, or consumed or used in the performance of the Work or designated portion, and all Work in process and completed Work or designated portion. • § 10.2.9 Any notice given to the Contractor by the Owner or the Architect of a safety or property protection violation will not: (1) relieve the Contractor of sole and complete responsibility for the violation and the correction thereof, or for sole liability for the consequences of said violation; (2) impose any obligation upon the Owner or Architect to inspect or review the Contractor's safety program or precautions or to enforce the Contractor's compliance with the requirements of this Article 10; or (3) impose any continuing obligation upon - the Owner or Architect to provide such notice to the Contractor or any other persons or entity. AIA Document A201 TM — 1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American • Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and. International Treaties. Unauthorized 52 • reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which I' expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) . el § 10.3 HAZARDOUS MATERIALS . § 10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the. Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. The Contractor shall proceed with the Work in areas not affected. § 10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to • perform the task of removal or safe containment of such material or substance. The Contractor and the Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Architect has an objection to a.person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor and the Architect . have no reasonable objection, but the Owner shall not be responsible for.anv delay resulting from the Contractor's objection to such person or entity. When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner and Contractor. The Contract PimeComponent Time shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor's reasonable additional costs of shut -down, delay and start-up, which adjustments shall be accomplished as provided in Article 7. , § 10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, Architect, Architect's consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily ' injury or death as described in Section 10.3.1 and has not been rendered harmless, provided that such claim, ' • damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) and provided that such damage, loss or expense is not due to the sele- negligence of a party seeking indemnity. . § 10.4 The Owner shall not be responsible under Section 10.3 for materials and substances brought to the site by the Contractor unless such materials or substances were required by the Contract Documents. The Contractor shall store all hazardous materials safely, whether or not required by Contract Documents. The ' Contractor shall not install hazardous materials, including without limitation asbestos or polychlorinated • biphenyl (PCB), in the Work: . § 10.5 If, without negligence on the part of the Contractor, the Contractor is held liable for the cost of . • remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred. § 10.6 EMERGENCIES § 10.6.1 In an emergency affecting safety of persons or property, the Contract shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Section 4.3 and Article 7. § 10.7 PUBLIC SAFETY AND CONVENIENCE § 10.7.1 The Contractor shall conduct its Work so as to ensure the least possible obstruction to vehicular traffic and inconvenience to the general public and the residents in the vicinity of the Work and to ensure the protection of persons, property and natural resources. No road or street shall be closed to the public except with the permission of the Owner and the proper governmental' authority. Fire hvdrants on or adjacent to•the Work shall be accessible to fire fighting equipment at all times. Temporary provisions shall be made.by the • AIA Document A201 TM - 1997. Copyright 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The America Init Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848 2.DOC ' (2273420147) • • Contractor to ensure the use of sidewalks, fire lanes, private and public driveways and proper functioning of gutters, sewer inlets, drainage ditches and culverts, irrigation ditches and natural water courses, if any, on the Work site. ARTICLE 11 INSURANCE AND BONDS • § 11.1 CONTRACTOR'S LIABILITY INSURANCE § 11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized and admitted to do business in the jurisdiction in which the Project is located possessing an A. M. Best's policyholder's rating of A minus or better and a financial rating of no less than VII and reasonably acceptable to the Owner, an occurrence -based Commercial General Liability Insurance Policy which shall provide personal injury, bodily injury and property damage liability on the Contractor's operations, including Subcontractors and suppliers of any tier; owned, non -owned and hired vehicles; and on work the Contractor may subcontract or sublet to others; and on the indemnity provisions of this Contract, including but not limited to premises, products /completed operations, personal injury, blanket contractual liability, explosion, collapse or underground (XClaand stopgap employer's liability. This insurance will name the Owner, the Architect, their consultants and employees, and any required governmental agencies as additional insureds and will include a severability of interest (cross liability clause) for Work performed under this Contract. The Contractor's policy shall be designated primary coverage for both defense and indemnity, and any Owner's policies excess. Such limits of liability insurance shall have per project general aggregate provisions and shall include:h .1 claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; 2 claims for damages because of bodily injury, occupational sickness or disease, or death of the . . Contractor's employees; .3. claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees; .4 claims for damages insured by usual personal injury liability coverage; .5 claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; - .6 claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; .7 claims for bodily injury or property damage arising out of completed operations; and .8 claims involving contractual liability insurance applicable to the Contractor's obligations under Section 3.18. § 11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims -made basis, shall be maintained without interruption from date of commencement of the Work until date of (Final payment- Acceptance and termination of any coverage required to be maintained after final payment. Completed operations coverage shall remain in force for three (3) years after Final Acceptance. The insurance described above shall include coverage for underground, collapse and explosion exposures. • • § 11.1.3 The Owner's specification or approval of the insurance in this 'Contract or of its amount shall not j relieve or decrease the liability of the Contractor under the Contract Documents or otherwise. Coverages are the minimum to be provided and are not limitations of liability under the Contract, indemnification, or • applicable law provisions. The Contractor may, at its expense, purchase larger coverage amounts. Certificates • AIA Document A201 ^' — . 1997. Copyright CD 1911, 1915, 1918, 1025, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This ALA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 54 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software.at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC " (2273420147) • • • • • • 11.1.4 All o olicies and certificates must be sit/ ed co • ies and shall contain a . rovision that written notice b certified mail must be provided to the Owner and Architect thirty (301 days before the policies expire or are cancelled or any coverages afforded under the policies are reduced, limits decreased, or the additional insureds removed. The Contractor shall furnish to the Owner and Architect copies of any subsequently issued • endorsements amending, modifving,altering or restricting coverage or limits. Furthermore, such policies or . certificates shall contain a clause verifying that the policy contains coverage for blanket contractual liability including both oral and written contracts and that liability coverages include protection for underground, collapse and explosion. • § 11.2 OWNER'S LIABILITY INSURANCE § 11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. Insuranco under Sections 11.1.1.2 through 11.1.1.5. • . tee: • • § 11.4 PROPERTY INSURANCE - - - AIA Document A201 T" —1997. Copyright ®1911, 1915,1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American I Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • • ID deductibles: • Y. Y W-Ofirr-iR-43-811Sit, .• • _ • - . - • - - . , • - _ • • - • , _ .. - - , . - ., -. _ _ ... - • . _ _ _ . .. .. - . , • • i'n'sure. • • .- • • • .. - •• - • § 11.4.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub - subcontractors, agents and employees, each of the other, and (2) the Architect, Architect's consultants, separate contractors described in Article 6, if any, and any of their subcontractors, sub - • subcontractors, agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section 11.4 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The • AIA Document A201 —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American I n it Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 56 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) Owner do es not waive the subro ation ri hts to the extent of its roe insurance on structures or portions of g P P rtY P st that do not comprise the Work. The Owner or Contractor, as appropriate, shall require of the Architect, Architect's consultants, separate contractors described in Article 6, if any, and the subcontractors, sub - subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. - § 11.4.8 Adjustment. Upon the occurrence of ate loss insured under Owner-is-the property insurance, shall-be adjusted-by-the Owner shall participate in and approve the adjustment and settlement of anv loss with the insurers._ . _'.. ... . - _ -. .. _ _ •• - ._ _'.. _ • _ __ _ _ . ... _ • .. _ - . _ : . • • _ _ • ... .. ... _ .: _ _ _ • _ _ _ - • - - -- - - - - _ - .. e . The Contractor shall pay. Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub - subcontractors in similar manner. ... _§ 11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the • parties in interest shall object in writing within five days after occurrence of loss to the Owner's exercise of this power; if such objection is made, the dispute shall be resolved as provided in Sections 4.5 and 4.6. The Owner ' as fiduciary shall, in the case of arbitration, make settlement with insurers in accordance with directions of the arbitrators. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution. § 11.5 PERFORMANCE BOND AND PAYMENT BOND § 11.5.1. The Owner shall have hero require the Contractor to furnish bonds covering faithful performance - of the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically required in the Contract Documents on the date of execution of the Contract. § 11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or . shall permit a copy to be made. § 11.6 If the Owner is damaged by the failure of the Contractor to maintain any of the bonds or insurance in this Article 11 or to so notify the Owner, then the Contractor shall bear all costs attributable thereto. The Owner may withhold payment pending receipt of all certificates of insurance and bonds. Failure to withhold payment shall not constitute a waiver. . § 11.7 PROOF OF INSURANCE . • 11.7.1 Before an Iresence on the site commencement of Work or ex , osure to loss can occur the Contractor shall furnish the Owner with (1) two copies of Certificates of Insurance, on AIA form G705 or equivalent, as evidence of all insurance required by the Contract Documents, (2) the actual costs (expressed as a percentage) of the Contractor's liability insurance under Section 11.1,'(3) endorsements for additional insured as listed in . Section 11.1, (4) two copies of L &I Statements for State Workers' Compensation coverage, and (5) a copy of AIA Document A201 n — 1997. Copyright m 1911, 1915, 1918, 1925, 1937. 1951. 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. . User Notes: Yakima 15170848_2.DOC (2273420147) , _ III , . any builder's risk policy required in Section 11.4. No progress payment will be due until all such items are furnished. All policies and certificates must be signed copies and shall contain a provision that written notice by certified mail must be provided to the Owner and Architect thirty (30) days before the policies expires or are cancelled, are reduced, the limits decreased, or the additional insureds removed, and shall include the premium percentage to be paid by the Contractor for increases in the GMP. The Contractor shall furnish to the Owner copies of any subsequently issued endorsements amending, modifying, altering, or restricting coverage of limits. Furthermore, such policies or certificates shall verify that the policy contains coverage for blanket , contractual liability including both oral and written contracts and acknowledge the indemnification provisions and liability coverages called for by this Agreement. Upon written request, the Contractor will provide a copy of its policy to the Owner. Such insurance should be maintained until the Project is accepted by the Owner. 411.7.2 The Owner's specification or approval of the insurance in this Contract or of its coverage or amount shall not relieve or decrease the liability of the Contractor under the Contract Documents or otherwise. Coverages are the minimum to be provided and are not limitations of liability under the Contract, indemnification, or applicable law provisions. The Contractor may, at its expense, purchase larger coverage amounts. Notwithstanding anything herein to the contrary, the Contractor shall provide all bonding, insurance, and permit documentation as required by governmental entities for all portions of the Project. § 11.7.3 If the Owner is damaged by the failure of the Contractor to maintain any of the insurance in this Article 11 or to so notify the Owner, then the Contractor shall bear all costs attributable thereto. The Owner ' may withhold payment pending receipt of all certificates of insurance. Failure to withhold payment shall not constitute a waiver. ARTICLE 12 UNCOVERING AND CORRECTION OF WORK § 12.1 UNCOVERING OF WORK § 12.1,1 If a portion of the Work is covered contrary to the Architcct's request of the Architect or the Owner or. 40 to requirements of a governmental authority or as otherwise specifically expressed in the Contract Documents, .. : , it must, if required in writing by the Architect, Owner or governmental authority, be uncovered for the - Architecfs- examination and be replaced at the Contractor's expense without change in the Contract . TimeComponent Time or Contract Sum. § 12.1.2 If a portion of the Work has been covered which the Architect or the governmental authority has not specifically requested to examine prior to its being covered and for which the Contract Documents did not require inspection, the Architect or the governmental authority may request to see such Work and it shall be { uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering • and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is.not in accordance with the Contract Documents, correction shall be at the Contractor's expense unless the condition was caused by the Owner or a separate contractor employed by the Owner, in which event the separate . • - contractor which ev the Owner shall be responsible for payment of such costs. § 12.2 CORRECTION OF WORK - § 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION 1 § 12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or Owner or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and • whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensationfor the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. .. § 12.2.2 AFTER SUBSTANTIAL COMPLETION § 12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if, within one year after the later of the date of Substantial Completion of all the Work or de igna•ed portion'hereof or after the date for I commencement of warranties established under Soction 9.9.1the Contract Documents, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in I 1 accordance with the requirements of the Contract Documents, the Contractor shall correct it according to the - AIA Document A201 — 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American ill Init Institute of Architects. All rights reserved. WARNING: This AIM) Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 58 j reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) re uirements of this Section with no Chan a in the Cost of the Work rom tl after receipt of written notice q g P PY P from the Owner to do so unless the Owner has previously given the Contractor a specific written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition. During the one- year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Section 2.4. If the Contractor does not promptly in accordance with the provisions of this Section initiate work to correct the Work designated in the notice, the Owner may proceed to correct the Work, the Owner may without further notice dispose of materials and equipment as it sees fit, and the Contractor will be liable for all costs. This correction period of one year shall be extended with respect to portions of Work first performed after Substantial Completion bv the period of time between Substantial Completion and the actual performance of the Work. This obligation shall survive acceptance of the Work under the Contract and termination of the Contract, is in addition to other warranties provided bv contract or law, and does not establish a time limit for damages. .1 If, in the Owner's opinion, the nonconforming Work either prevents the use of a portion of the facility and/or immediate response is required to prevent further damage or to restore security to prevent external entrance, and/or is a safety hazard (e.g., break in the waterline, sprinkler system failure, failure of the heating system, inability to close or lock exterior door, etc.), the Contractor shall initiate corrective work on site the same day if the Contractor is notified prior to noon, or by noon the following day if notified after noon, and shall complete corrective action within 48 hours. .2 If, in the Owner's opinion, the nonconforming Work has the potential of becoming a safety hazard, of affecting internal security, or of limiting the use of the facility (e.g., potential loss of heat in a single classroom, failure of one or more plumbing fixtures, loose carpet seam in corridor, interior door lock not working, etc.), the Contractor shall initiate corrective work on • site within two (2) working days and shall complete corrective action within five (5) working fil . days. .3 If, in the Owner's opinion, the nonconforming Work does not have an impact on the use of the building, but must be fixed, (e.g., interior door closer broken, window cracked, wall covering seam coming loose, etc.), the Contractor shall initiate corrective work on site within fourteen (14) calendar days and shall complete corrective action within twenty-right (28) calendar days. § 12.2.2.2 The one -year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between. Substantial Completion and the actual performance of the Work. • § 12.2.2.3 The one -year period for correction of Work shall not be extended by corrective Work performed by • the Contractor pursuant to this Section 12.2. § 12.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. § 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction; whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. § 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one- year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be. AIA Document A201"' —1997. Copyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 w hich expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) _ , . III . c ommenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. § 12.3 ACCEPTANCE OF NONCONFORMING WORK ' § 12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS ' § 13.1 GOVERNING LAW § 13.1.1 The Contract shall be govemed by the internal law of the place where the Project is located, without regard to its choice -of -law provisions. § 13.2 SUCCESSORS AND ASSIGNS § 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Section 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. . § 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to an institutional lender providing construction financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment. • 1110 § 13.2.3 If a majority of the ownership or the control of Contractor is acquired by a third party and such acquisition reasonably imperils performance or creates a conflict of interest that the Owner, in its sole • discretion, cannot reasonably reconcile, then the Owner may terminate this Contract at any time pursuant to Section 14.2, except that the Owner shall give the Contractor thirty (30) days written notice of termination and the opportunity for the Contractor to cure prior to termination. § 13.3 WRITTEN NOTICE , • § 13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the fine or entity or to an officer of the corporation for which it was intended, or if delivered at or . sent by fax, registered or certified mail to the last business address known to the party giving notice. The date - of written notice shall be the earlier of the date of personal delivery, actual receipt by fax; or three (3) calendar days after the date of postmark.' § 13.4 RIGHTS AND REMEDIES • • § 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available - . thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. The Contractor's sole remedy for claims, disputes and other matters in question of . _ . the Contractor, direct or indirect arising out of, or relating to, the Contract Documents or breach thereof ' except claims which have been waived under the terms of the Contract Documents, however, is the dispute resolution procedure of Article 4. • § 13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or . . , duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. § 13.4.3 If any portion of this Contract is held to be void or unenforceable the remainder of the Contract shall be enforceable without such portion. • Ini AIA Document A201 —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 60 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. ' . User Notes: Yakima 15170848_2.DOC (2273420147) • § 13.5 TESTS AND INSPECTIONS § 13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to or provided by the Owner, or with the appropriate public authority, and the Owner shall bear all related costs of tests, inspections and approvals, except that the Contractor will be responsible for any costs of retesting and any extra costs caused by the Contractor. The Contractor shall give the Architect and Owner timely notice of when and where tests and inspections are to be made so that the Architect and Owner may be present for such procedures. The independent testing agency shall prepare the test reports, logs and certificates applicable to the specific inspections and tests and promptly and simultaneously deliver the specified number of copies of them to the designated parties. The Owner shall bear costs of tests, inspections or approvals which do not become requirements until after bids are received or negotiations concluded. § 13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section 13.5.1, the Architect will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Section 13.5.3, shall be at the Owner's expense. § 13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. § 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect. § 13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. • § 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. The Contractor shall give the Owner and Architect forty-eight (48) hours' notice prior to all tests and inspections by third parties. • 13.5.7 If the Owner is res , onsible under the Contract Documents law or re. ulation to I a onl for an inspection of any inspector, consultant or Architect, the Owner shall be required to pay only for the first actual inspection. If the Contractor arranges for an inspection and the inspector is required to wait, to leave without inspecting, to perform a partial inspection, to return to complete or reinspect, or otherwise to expend time other than for the primary inspection, the Contractor shall be responsible for all such costs to the extent caused by the Contractor. If the Contractor does not pay the charges for which it is responsible within sixty (60) days of billing, the Owner may_pay the charges directly and backcharge the Contractor on the next progress payment for the amount paid plus a 15% handling fee. • 13.5.8 No acceptance by the Owner of any Work shall be construed to result from any inspections, tests or failures to inspect or test by the Owner, the Owner's representatives, the Architect or any other person. No inspection, test, failure to inspect or test, or failure to discover any defect or nonconformity by the Owner, the Owner's representatives, the Architect or any other person shall relieve the Contractor of its responsibility for meeting the requirements of the Contract Documents or impair the Owner's right to reject defective or nonconforming items or right to avail itself of any other remedy to which the Owner may be entitled, AIA Document A201"• —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) , . III notwithstanding the Owner's knowledge of the defect or nonconformity, its substantiality or the ease of its discovery. • § 13.6 INTEREST § 13.6.1 Payments due and unpaid under the Contract Documents shall bear interest under the conditions specified by RCW 39.76, "Interest on Unpaid Public Contracts." : - -• - - - - _ : - -- 3- ' § 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD § 13.7.1 As between the Owner and Contractor: .1 Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date • of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; .2 Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of issuance of the final Certificate for Payment; and - . . .3 After Final Certificate for_Payment. As to acts or failures to act occurring after the relevant - date of issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all _ events not later than the date of any act or failure to act by the Contractor pursuant to any ' Warranty provided under Section 3.5, the date of any correction of the Work or failure to correct . ill the Work by the Contractor under Section 12.2, or the date of actual commission of any other act or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last. j $13.8 STATUTES ' The Contractor' shall abide by the _provisions of all applicable Washington statutes. Although a number of statutes are referenced in the Contract Documents, these references are not meant to be a complete list and should not be relied upon as such. • 13.8.1 Contractor Re. istration. Pursuant to RCW 39.06 "Re • istration Licensin l of Contractors " the . Contractor shall be registered or licensed as required by the laws of the State of Washington, including but not limited to RCW 18.27, "Registration of Contractors." I _ . • 13.8.2 Law a • ainst Discrimination. The Contractor shall com.1 with . ertinent statuto .rovisions relatin • to public works of RCW 49.60, "Discrimination. The Contractor and all Subcontractors shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin. The Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated - during employment without regard to their race, religion, color, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places available to employees and applicants for employment, notices setting forth the policies of nondiscrimination. The Contractor and all . Subcontractors shall, in all solicitations or advertisements for employees placed by them or on their behalf state i that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, or national origin. § 13.8.3 Provisions for Aged and Handicapped Persons. Contractor shall comply with pertinent statutory provisions relating to public works of RCW 70.92, "Provisions in Buildings for Aged and Handicapped Persons," and the Americans with Disabilities Act. • Init AIA Document A201 "' — 1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967. 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 62 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. ' 1 User Notes: Yakima 15170848_2.DOC (2273420147) 1 • 13.8.4 Safe Standards. The Contractor shall com 1 with I ertinent a rovisions of RCW 49.17 Washin • on • Industrial Safety and Health Act," and Chapter 296 -155 WAC, "Safety Standards for Construction Work." § 13.8.5 Unemployment Compensation. Pursuant to RCW 50.24, "Contributions by Employers," in general and RCW 50.24.130 in particular, the Contractor shall pay contributions for wages for personal services performed under this Contract or arrange for a bond acceptable to the commissioner. The Contractor shall comply with all the requirements and conditions of the State of Washington Workers' Compensation Law, also with the rules, regulations and decisions made during the duration of this contract. The Contractor shall save the Owner and agents of the Owner harmless from any loss, damage or expense that they may suffer by failure of the Contractor to comply with the above. • 13.8.6 Dru • - Free Work • lace. The Contractor and all Subcontractors of an tier shall full com 11 with all applicable federal, state, and local laws and regulations regarding drug -free workplace, including the Drug -Free Workplace Act of 1988. Any person not fit for duty for any reason, including the use of alcohol, controlled • substances, or drugs, shall immediately be removed from the Work. § 13.8.7 Asbestos Removal To the extent this Project involves asbestos removal, the Contractor shall comply with Chapter 49.26 RCW, "Health and Safety-- Asbestos," and any provisions of the Washington Administrative Code promulgated thereunder, and the applicable section of the Specifications should be viewed for possible insurance required for the applicable Subcontractor. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT , § 14.1 TERMINATION BY THE CONTRACTOR • § 14.1.1 Tho Except as provided by RCW 60.28.080, the Contractor may terminate the Contract if the Work is . stopped for a period of 3060 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub- subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: • : 1 issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; _ .2 an actof government, such as a declaration of national emergency which requires all Work to be stopped; . 3 because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Section 9.4.1, or because the Owner has improperly not made payment on a Certificate for Payment within the time stated in the Contract Documents; or .. . 4 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable evidence as required by Section 2.2.1. § 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a • Subcontractor, Sub- subcontractor or their agents or employees or any other persons or entities performing _ portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as described in Section 14.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365 -day period, whichever is less. § 14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days' written notice to the Owner and Architect (during which period the Owner has the opportunity to cure), terminate the Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable . I overhead, profit and direct damages. The total recovery of the Contractor shall not exceed the unpaid balance of the GMP. § 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a , Subcontractor or their agents or employees or any other persons performing portions of the Work under AIA Document A201 ^' - 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The America ' Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • contract with the Contractor because the Owner has persistently failed to fulfill the Owner ' s obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days' written notice to the Owner and the Architect, terminate the Contract and recover from the Owner as provided in Section 14.1.3. • § 14.2 TERMINATION BY THE OWNER FOR CAUSE § 14.2.1 The Owner may, upon seven (7) days' written notice to the Contractor, terminate (without prejudice to any right or remedy of the Owner) the whole or any portion of the Work or the Contract for cause if the Contractor: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make prompt payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; .3 p _r i tent'_; materially disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or .4 fails to prosecute the Work or any portion thereof with sufficient diligence to ensure the Substantial Completion of the Work of a Component within the Component Time or the Substantial Completion of all the Work within the Contract Time; or .5 is adjudged bankrupt, makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of its insolvency; or .6 fails to comply with the provisions of RCW 28A.400.330 by permitting a worker on the Project having contact with children who has been convicted of or pled guilty to a felony crime . • involving children as described in Section 3.4.2; or .7 . otherwise is guilty of a material or substantial breach of or default under a provision of the Contract Documents. . § 14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven days' written notice, terminate employment of 1 the Contractor on all or a portion of the Work and may, subject to any prior rights of the surety: .1 take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; - .2 accept assignment of subcontracts pursuant to Section 5.4; -and .3 finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work:: and _ .4 take or direct any or all of the actions in Section 14.5.1. § 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, theContractor • shall not be entitled to receive further payment until the Work is finished. , § 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architects services and expenses made necessary thereby, and other damages incurred by the Owner ' and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the - ; . • unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Architect, upon application, and this obligation for payment shall survive termination of the Contract. . • . • 14.2.5 If the Owner terminates a ' ortion of the Work the Contractor shall continue the , erformance of the remainder of the Work in accordance with the Contract Documents to the extent not terminated. • 14.2.6 If after the Contractor has been terminated I ursuant to this Section 14.2 it is determined that none of the circumstances set forth in Section 14.2.1 exists, then such termination shall be considered a termination for convenience pursuant to Section 14.4. 4110 AIA OocumentA2Ol — 1997. Copyright© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architects. All rights reserved. WARNING: This AIA© Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 64 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • • • 4110 § 14.3 SUSPENSION. BY THE OWNER FOR CONVENIENCE § 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. _ 1 § 14.3.2 The Contract Sum, Component Time and Contract Time shall be adjusted for ceases- changes in the cost and time caused by suspension, delay or interruption as described in Section 14.3.1. Adjustment of the 1 Contract Sum shall be consistent with the terms of the Contract Documents and include pr-e€itFee. No adjustment shall be made to the extent: .1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or .2 that an equitable adjustment is made or denied under another provision of the Contract. § 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE § 14.4.1 The Owner may, at any time, terminate (without prejudice to any right or remedy of the Owner) the whole or any portion of the Contract for the Owner's convenience and without cause. § 14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor shall: .1 cease operations as directed by the Owner in the notice; ' .2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and .3 except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. § 14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive payment consistent with the Contract Documents for Work properly executed; and costs necessarily incurred by reason of such termination (such as the cost of settling and paving claims arising out of the - termination of Work under subcontracts or orders), along with reasonable overhead- and -profit on the Work not executed, not to exceed the lesser of the Fee in Section 7.5.5 or the percentage profit in the Contractor's bid . The total sum to be paid to the Contractor under this Section 14.4 shall not exceed the GMP as reduced by the amount of payments otherwise made, by the larger of (1) the actual value or (2) the scheduled value of Work not terminated, and as otherwise permitted by this Contract. The amounts payable to the Contractor shall exclude the fair value of property which is destroyed, lost, stolen or damaged so as to become undeliverable to the . Owner or to a buyer pursuant to Section 14.5.1.7. § 14.5 EFFECTS OF TERMINATION BY OWNER. 414.5.1 Unless the Owner directs otherwise, after receipt of a Notice of Termination from the Owner pursuant to Section 14.2 or 14.4, "the Contractor shall promptly: . ' .1 stop Work under the Contract on the date and as specified in the Notice of Termination; - .2 place no further orders or subcontracts for materials. equipment, services or facilities, except as -- • may be necessary for completion of any portion of the Work that is not terminated; .3 procure cancellation of all orders and subcontracts, upon terms acceptable to the Owner, to the , extent that they relate to the performance of Work terminated; .4 assign to the Owner all of the right, title and interest of the Contractor under all orders and subcontracts, as directed by the Owner, in which case the Owner shall have the right. in its - discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts; .5 with the Owner's approval, settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts not assigned to the Owner; .6 transfer title and deliver to the entity or entities designated by the Owner the fabricated or unfabricated parts, Work in process, partially completed supplies and equipment, materials, parts, tools, dies, jigs and other fixtures, completed Work, supplies and other material produced as part AIA Document A201 TM —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 1000354960_1 which expires on 5/5/2009, and is not for resale. User Notes: Yakima 15170848_2.DOC (2273420147) • • • ■ c the completed of, or acquired in connection with the performance of, e Work terminated, and the or partially completed plans, drawings, information and other property related to the Work; I .7 use its best efforts to sell any property of the types referred to in Section 14.5.1.6. The Contractor shall not be required to extend credit to any buyer, and may acquire any such property under the conditions prescribed by and at a price or prices approved by the Owner, and the proceeds of any such transfer or disposition may be applied in reduction of any payments to be made by the Owner to the Contractor; . .8 take such action as may be necessary or as directed by the Owner to preserve and protect the Work and property related to this Project in the possession of the Contractor in which the Owner has an interest and • .9 continue performance only to the extent not terminated. • 14.5.2 In arrivin • at an amount due the Contractor after termination the followin • deductions shall be made: .1 all unliquidated advance or other prior payments on account made to the Contractor applicable to the terminated portion of the Contract; .2 any claim the Owner may have against the Contractor;, .3 an amount necessary to protect the Owner against outstanding or potential liens or claims; and .4 the agreed price for or the proceeds of sale of any materials, suppliers or other things acquired by the Contractor or sold, pursuant to the provisions of Section 14.5.1.7, and not otherwise recovered by or credited to the Owner. . • 14.5.3 If and onl i the termination . ursuant to Section 14.4 is . artial the Contractor ma . file a Claim for an equitable adjustment of the price or prices specified in the Contract relating to the continued portion of the • • . i Contract. Any claim by the Contractor for an equitable adjustment under this Section must be asserted within sixty (601 days from the effective date of the Termination. ill § . 14.5.4 T he Contractor shall refund to the Owner any amounts paid by the Owner to the Contractor in excess of costs reimbursable under the Contract Documents. • 14.5.5 The Contractor shall from the effective Date of Termination until the ex. iration of three 3 ears after final settlement under this Contract, preserve and make available to the Owner, at all reasonable times at the • office of the Contractor, and without charge to the Owner, all books, records, documents, photographs and other evidence bearing on the costs and expenses of the Contractor under this Contract and relating to the • • terminated Work. The Owner may have costs reimbursable under this Article 14 audited and certified by • independent certified public accountants selected by the Owner, who shall have full access to all the books and records of the Contractor. i • 14.5.6 The dama • es and relief from termination b the Owner s. ecificall . rovided in Article 14 shall be the • Contractor's sole entitlement in the event of termination. 1 . . 1 AIA Document A201 TM —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 66 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ' maximum extent possible under the law. This document was produced by AIA software at 23:14:41 on 2/2/2009 under Order No. 10003549601 which i expires on 5/5 /2009, and is not for resale. 1 User Notes: Yakima 15170848_2.DOC (2273420147) • 1 • SPECIAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION A. PERMITS, FEES AND NOTICES City, County and Other Jurisdictional Authorities The Owner will obtain and pay for the initial construction and inspection permit and the initial water, power, sewer, and storm utility connection fees. The Contractor shall obtain all additional permits and licenses necessary for the execution of the Work and pay all permit, utility, miscellaneous, and ancillary fees required, including but not limited to the following: the State of Washington Department of Labor and Industries, and other such agencies determined to have jurisdictional authority. The Contractor shall coordinate and schedule all Work with permitting agencies, utility companies, and other such agencies determined to have jurisdictional authority necessary for completion of the Work. The Contractor shall be responsible for providing all information, documents, and fees to the permitting agencies, utility companies, and other such agencies determined to have jurisdictional authority within 30 days after issuance of the conditional Notice to Proceed as necessary-to.obtain and coordinate permits, utility and other such connections. The Contractor shall obtain all permit renewals during the course of the Work. State of Washington Permits The Electrical Permit has been applied for and will be available to the Contractor for this Project prior to the commencement of electrical Work. The Contractor will be responsible for providing information and fees to the Department of Labor and Industries. Renewal and Penalties The Contractor will be responsible for any renewals of and penalties arising from the building permit and other permits and governmental fees. 411 SPECIAL CONDITIONS Yakima 15170848_2 DOC 02/02/09 SC -1