HomeMy WebLinkAbout4113 Resolution - DBIA Zone 3 Water Storage Reservoir Project RESOLUTION NO.4113
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE CITY MANAGER TO EXECUTE THE DESIGN BUILD
INSTITUTE OF AMERICA PHASE 1 AGREEMENT WITH T BAILEY, INC.
FOR THE PROGRESSIVE DESIGN-BUILD SERVICES FOR THE ZONE 3
WATER STORAGE RESERVOIR PROJECT.
WHEREAS,the City of Pasco,Washington requires professional progressive design-build
services from a construction company and engineering firm for the Zone 3 Water Storage
Reservoir project; and
WHEREAS, on June 25, 2021 the City received approval from the State of Washington
Capital Project Advisory Review Board, Project Review Committee to utilize the Design-Build
alternative contracting procedure for the Zone 3 Water Storage Reservoir project based on meeting
criteria established in RCW 39.10.280; and
WHEREAS, the City of Pasco published an announcement on June 25 and July 2, 2021,
of its Request for Qualifications (RFQ) related to its general need for professional Progressive
Design-Build services pursuant to RCW 39.10.300 and 39.10.320("DB Delivery Method or DB");
and
WHEREAS, the City of Pasco short-listed three qualified respondents from the RFQ
process and offered an invitation to submit responses to a Request for Proposals (RFP) and
participate in an interview presentation to design and build the Zone 3 Water Storage Reservoir
project; and
WHEREAS, the City of Pasco reviewed the RFP responses and interviewed the three
respondents and determined the T Bailey, Inc./RH2 Engineering team to be the most highly
qualified pursuant to RCW 39.80.040; and
WHEREAS, the City of Pasco, pursuant to RCW 39.80.050(1), has negotiated a fair and
reasonable DBIA Phase 1 Agreement with T Bailey, Inc. based on the estimated value of the
services including their scope, complexity, and professional nature; and
WHEREAS,the City of Pasco hereby finds that T Bailey, Inc./RH2 Engineering team are
the most highly qualified firms to perform the necessary progressive design-build services for the
Zone 3 Water Storage Reservoir project, and the negotiated Phase 1 a contract is both fair and
reasonable, for an amount not to exceed $388,961.76.
Resolution—DBIA Agreement with T Bailey,Inc.
Water Storage Reservoir Zone 3 Progressive Build Design project- 1
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO,WASHINGTON:
That the City Manager far the City of Pasco is hereby authorized to execute the DBIA
Phase 1 Agreement with T Bailey, Inc., a copy of which is attached hereto, and incorporated herein
by reference as Exhibit A, and to make minor substantive changes as necessary to execute the
Agreement; and
Be It Further Resolved that this Resolution shall be in full force and effect upon adoption.
PASSED by the City Council of the City of Pasco, Washington, this 1 St day of November,
2021.
�
Saul Martinez
Mayor
ATTEST: APPROVED AS TO FORM:
! �+�� _ _
G� r✓1�- � —
Debra Barham, CMC rr F�r n Law C �
City Clerk City A�-`—
Resolution—DBIA Agreement with T Bailey,Inc.
Water Storage Reservoir Zone 3 Progressive Build Design project-2
EXHIBIT A
DBIA
PROGRESSIVE DESIGN�-BUILD
AGREEMENT BETWEEN �WNER
AND DESIGN-BUILDER - COST PLUS
FEE VIIITH A GUARANTEED
MAXIMUM PR�CE
Not�: Ti��s docurneraf P�as been modifier� from the L7BIA Farn�. A redlrned c�py
will be provided upon request.
Document No. 530
Secand Edition 2010
O Design-Build Institute of America
Washington, DC
TABLE �F CONTENTS
Article Name Page
Article1 Scope of Work............................................................................................... 1
Article 2 Contract Documents.....................................................................................2
Article 3 Interpretation and Intent...............................................................................2
Article 4 Ownership of Work Product.........................................................................3
Article 5 Contract Time................................................................................................4
Article 6 Contract Price................................................................................................5
Article 7 Procedure for Payment............................................................................... 17
Article 8 Termination for Convenience..................................................................... 19
Article 9 Representatives of the Parties................................................................... 19
Article 10 Bonds and Insurance................................................................................20
Article 11 Other Provisions .......................................................................................20
DBIA
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Progressive Design-Build Agreement Between
Owner and Design-Builder — with Cost Plus Fee
and a Guaranteed Maximum Price
This document has important legal consequences. Consultation with
an aifomey is recommended with respect to its complefion or modificafion.
This AGREEMENT is made as of the day of
in the year of 20 , by and between the following parties,for services in connection with the Project
identified below:
OWNER:
(Name and address)
City of Pasco
PO Box 293/525 North 3"'Ave
Pasco,WA 99301
DESIGN-BUILDER:
(Name and address)
T BAILEY, INC.
9628 South Marchs Point Rd.
Anacortes,WA 98221
PROJECT:
(lnclude Project name and location as it will appear in fhe Contract Documenfs)
Zone 3 Reservoir Storage Tank
In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder
agree as set forth herein.
Article 1
Scope of Work
1.1 Design-Builder shall perform all design and construction services, and provide all material,
equipment, tools and labor, necessary to complete the Work described in and reasonably inferable from
the Contract Documents.
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Article 2
Contract Documents
2.1 The Contract Documents are comprised of the following:
2.1.1 All written modifications, amendments, minor changes, and Change Orders to this
Agreement issued in accordance with DBIA Document No. 535, Standard Form of General
Condifions of Contract Befween Owner and Design-Builder(2010 Edition, as amended) ("General
Conditions of Contract"), including but not limited to The GMP Amendment in accordance with
Section 6.6 herein, provided such Amendment is executed between the parties.
2.1.2 This Agreement, including all exhibits but excluding the GMP Amendment:
.1 Exhibit A: Initial Basis of Design Documents
.2 Exhibit B1: Insurance Exhibit—Design-Builder's Insurance Requirements
.3 Exhibit B2: Form of Payment Bond
.3 Exhibit B3: Form of Performance Bond
.4 Exhibit C: Phase 1 and 2 Scope of Services
.5 Exhibit D: Phase 1 Level of Effort
.6 Exhibit E: Hourly Rates, Unit Prices, and Allowance Items
.6 Exhibit F: Form GMP Amendment
.7 Exhibit G: Form Change Orders
2.1.3 The General Conditions of Contract; and
2.1.4 Design Submissions, the Design Log, and the Construction Documents prepared and
approved in accordance with Section 2.4 of the General Conditions of Contract, the most recent
approved documents goveming over previously approved documents.
Article 3
Interpretation and Intent
3.1 Design-Builder and Owner, prior to execution of the Agreement, shall carefully review all the
Contract Documents, including but not limited to the various documents in the Initial Basis of Design
Documents set forth in Exhibit A, and the Phase 1 and 2 Scope of Services set forth in Exhibit C, for any
conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or
ambiguities prior to execution of the Agreement.
3.2 The Contract Documents are intended to be complementary and interpreted in harmony so as to
avoid conflict, with words and phrases interpreted in a manner consistent with construction and design
industry standards. In the event inconsistencies, conflicts, or ambiguities between or among the Contract
Documents are discovered after execution of the Agreement or after the parties' execution of the GMP
Amendment, Design-Builder and Owner shall attempt to resolve any ambiguity, conflict or inconsistency
informally, recognizing that the Contract Documents shall take precedence in the order in which they are
listed in Section 2.1 hereof. (rvote, fhe parties are sfrongly encouraged to establish in the GMP Exhibit or GMP Proposal(as
applicable)the priority of the various documents comprising such exhibit or proposal.)
3.3 Terms, words and phrases used in the Contract Documents, including this Agreement, shall have
the meanings given them in the General Conditions of Contract.
3.4 If the Initial Basis of Design Documents contain design or prescriptive specifications the Design-
Builder shall be entitled to reasonably rely on the accuracy of the information represented in such design
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or prescriptive specifications and their compatibility with flther information set forth in Initial Basis of Design
Documents, including any performance specifications for the purposes of developing the Scope of Services
for Phase 1, the Phase 1 Not to Exceed Amount and the Design-Builder's Fee Percentage. However,
during Phase 1, Design-Builder is required to perform an independent evaluation of such design or
prescriptive specifications to verify the information provided by the Owner. Further, regardless of the
inclusion of design or prescriptive specifications or criteria, Design-Builder shall remain responsible for
meeting the performance requirements of the Project, including but not limited to the requirements that the
Project meet the Initial and Final Basis of Design Documents as well as all applicable Legal Requirements.
Provided Design-Builder complies with other requirements set forth in this Agreement such as those
regarding notice of claims to Owner and identification of differing site conditions, Design-Builder shall be
entitled to an adjustment in the Scope of Services for Phase 1, the Phase 1 Not to Exceed Amount and/or
the Design-Builder's Fee Percentage, but only to the extent Design-Builder's cost and/or time of
performance have been adversely impacted by such inaccurate design or prescriptive specifications that
are inconsistent with meeting the performance requirements.
3.5 The Contract Documents form the entire agreement between Owner and Design-Builder and by
incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or
other agreements have been made by the parties except as specifically stated in the Contract Documents.
3.6 Design-Builder was selected based in part on the qualifications of the Key Team Members identified
in the Design-Builder's Statement of Qualifications and Proposals. Design-Builder may not substitute the
identified Key Team Members without written permission from Owner, such permission shall not be
unreasonably withheld. Any substituted Key Team Member must possess the same or better qualifications
as the previously approved Key Team Member.
Article 4
Ownership of Work Product
4.1 Work Product. All drawings, specifications and other documents and electronic data, including
such documents identified in the General Conditions of Contract, furnished by Design-Builder to Owner
under this Agreement ("Work Product") are deemed to be instruments of service and Design-Builder shall
retain the ownership and property interests therein, including but not limited to any intellectual property
rights, copyrights and/or patents, subject to the provisions set forth in Sections 4.2 through 4.5 below.
4.2 Owner's Limited License upon Project Completion and Payment in Full to Design-Builder.
Upon Owner's payment in full for all Work perFormed under the Contract Documents, Design-Builder shall
grant Owner a limited license to use the Work Product in connection with Owner's occupancy of the Project,
conditioned on Owner's express understanding that its alteration of the Wark Product without the
involvement of Design-Builder is at Owner's sole risk and without liability or legal exposure to Design-
Builder or anyone working by or through Design-Builder, including Design Consultants of any tier
(collectively the "Indemnified Parties"), and on the Owner's obligation to provide the indemnity set forth in
Section 4.5 below.
4.3 Owner's Limited License upon Owner's Termination for Convenience or Design-Builder's
Election to Terminate. If Owner terminates this Agreement for its convenience as set forth in Article 8
hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the
General Conditions of Contract, Design-Builder shall, upon Owner's payment in full of the amounts due
Design-Builder under the Contract Documents, grant Owner a limited license to use the Work Product to
complete the Project and subsequently occupy the Project,and Owner shall thereafter have the same rights
as set forth in Section 4.2 above, conditioned on the following:
4.3.1 Use of the Work Product is at Owner's sole risk without liability or legal exposure to any
Indemnified Party, and on the Owner's obligation to provide the indemnity set forth in Section 4.5
below, and
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4.3.2 Owner shall not be required to pay Design-Builder additional compensation for the right to
use the Work Product to complete the Project and subsequently use the Work Product in
accordance with Section 4.2 if Owner resumes the Project through its employees, agents, or third
parties.
4.4 Owner's Limited License upon Design-Builder's Default. If this Agreement is terminated due to
Design-Builder's default pursuant to Section 11.2 of the General Conditions of Contract, then Design-
Builder grants Owner a limited license to use the Work Product to complete the Project and subsequently
occupy the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section
4.2 above. Notwithstanding the preceding sentence, if it is ultimately determined that Design-Builder was
not in default, Owner shall be deemed to have terminated the Agreement for cvnvenience, and Design-
Builder shall be entitled ta the rights and remedies set forth in Section 4.3 above.
4.5 Owner's Indemnification for Use of Work Product. If Owner is required to indemnify any
Indemnified Parties based on the use or alteration of the Work Product under any of the circumstances
identified in this Article 4, Owner shall defend, indemnify and hold harmless such Indemnified Parties from
and against any and all claims,damages, liabilities, losses and expenses, including attorneys'fees, arising
out of or resulting from the use or alteration of the Work Product.
Article 5
Contract Time
5.1 Date of Commencement. The Work shall commence within five (5) days of Design-Builder's
receipt of Owner's Notice to Proceed ("Date of Commencement") unless the parties mutually agree
otherwise in writing.
5.2 Substantial Completion and Final Completion.
5.2.1 Phase 1 shall be completed no later than June 30,2022("Phase 1 Completion Date"). The
parties will establish a date for Substantial Completion of the entire Work("Scheduled Substantial
Completion Date") in the GMP Amendment.
5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work
("Scheduled Interim Milestone Dates")shall be determined during Phase 1: �rnse►tanyinter;m miiestones
for portions of the Woric with different scheduled dates ior Substantial Completion)
5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as
expeditiously as reasonably practicable. Final Completion is the date when all Work is complete
pursuant to the definition of Final Completion set forth in Section 1.2.13 of the General Conditions
of Contract.
5.2.4 All of the dates set forth in this Article 5(collectively the"Contract Time(s)")shall be subject
to adjustment in accordance with the General Conditions of Contract.
5.3 Time is of the Essence.Owner and Design-Builder mutually agree that time is of the essence with
respect to the dates and times set forth in the Contract Documents.
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5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion of the Project or
any Interim Milestone Date is not attained by the Scheduled Interim Milestone Date or Substantial
Completion Date, Owner will suffer damages which are difficult to determine and accurately specify.
Therefore, provided the parties enter into the GMP Amendment, Design-Builder and Owner will establish a
liquidated damage rate for delay in the GMP Amendment for each day that Substantial Completion extends
beyond any Scheduled Interim Milestone Date and/or the Substantial Completion Date, as applicable.
5.5 Any liquidated damages assessed pursuant to this Agreement for delay damages shall be in lieu
of all liability for any and all extra costs, losses, expenses, claims, penalties and any other damages,
whether special or consequential, and of whatsoever nature, incurred by Owner which are occasioned by
any delay in achieving the Contract Time(s).
5.6 In addition, the parties may establish liquidated damages as a remedy for other breaches of
contract or failure to achieve performance standards. Such liquidated damages provisions may be added
in the GMP Amendment or by written Change Order.
Article 6
Contract Price
6.1 Contract Price.
6.1.1 Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of
Contract a contract price ("Contract Price")as set forth herein.
.1 Subject to the provisions of the Contract Documents, the Owner shall pay Design
Builder for each Phase of the Project in accordance with Section 6.6 of the Agreement.
Design Builder's Compensation shall be subject to the Phase 1 NTE and the GMP, as
applicable. The Phase 1 NTE, and the GMP, as applicable,shall be the maximum amount
that the Design Builder may be compensated for the applicable Centract Phase, as
amended pursuant to this Contract. The maximum amount that the Design Builder may be
compensated pursuant to this Agreement for any given phase shall also be referred to as
the Contract Price("Contract Price"). The elements of the Design Builder's Compensation,
subject to the Contract Price are set forth herein. If the sum of the Design-Builder's
Compensation is less than the Phase 1 NTE and/or the GMP, as applicable, the savings
shall go to the Owner.
.2 The parties acknowledge that the scope of work for this Project is not fully
developed. The Design-Builder shall develop the Basis of Design Documents and other
deliverables in Exhibit C such that the total Compensation to the Design-Builder shall not
exceed the GMP set forth herein, unless the parties agree in writing to increase the GMP
or the Design-Builder is otherwise entitled to an increase to the GMP pursuant to the terms
of the Contract Documents.
6.2 Design-Builder's Fee Percentage and Lump Sum Fee.
6.2.1 Design-Builder's Fee Percentage shall be:
Three point seven percent(3_7%)of the Cost of the Work, as adjusted in accordance with
Section 6.2.2 below.
The Fee Percentage and any Lump Sum Fee shall include the following items,which shall
not be charged as a Cost of the Work:
.1 All profit of the Design-Builder for this Project; and
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.2 All regional and home office overhead expenses, including labor and
materials, phone, facsimile, postage, internet service, and other incidental office
expenses attributed to work on this Project.
6.2.2 Prior to the execution of the GMP Amendment, Design-Builder's Fee Percentage will only
be adjusted pursuant to Section 3.4 of this Agreement.
6.2.3 If the Parties enter into the GMP Amendment, Design-Builder shall be paid a lump sum fee
(the"Lump Sum Fee")determined by multiplying the Fee Percentage by the estimated Cost of the
Work included in the GMP Amendment. The estimated Cost of the Work shall include the Lump
Sum General Conditions Amount. The Lump Sum Fee will be earned and paid on a monthly basis
following execution of the GMP Amendment on a percentage of completion basis, specifically
taking into account payments previously made, including during Phase 1. The following costs shall
be excluded from the Cost of the Work when calculating the Lump Sum Fee:
.1 Owner Directed Allowances, as defined in Section 6.4.1.6; and
.2 The Design-Builder's Contingency as defined in Section 6.4.4.1.b.
6.2.4 The Lump Sum Fee established in the GMP Amendment shall not be modified unless the
GMP varies, either upward or downward, by more than five percent (5%) from the GMP
set forth in this Agreement("Original GMP").
.1 If the GMP increases by more than five percent(5%)above the Original GMP, the
Lump Sum Fee shall be increased by the amount of the Fee Percentage multiplied
by that portion of the Cost of the Work that is in excess of one hundred five percent
(105%)of the Cost of the Work set forth in the Original GMP.
.2 If the GMP decreases by more than five percent(5%)below the Original GMP,the
Lump Sum Fee shall be decreased by the amount of the Fee Percentage multiplied
by that portion of the Cost of the Work that is less than ninety-five percent (95%)
of the Cost of the Work set forth in the Original GMP.
.3 The following costs shall be excluded from the Cost of the Work when calculating
adjustments to the Lump Sum Fee:
a. Owner Directed Allowances, as defined in Section 6.4.1.6; and `
b. The Design Builder's Contingency as defined in Section 6.4.4.1.b.
6.3 Cost of the Work. The term Cost of the Work shall mean costs reasonably and necessarily
incurred by Design-Builder in the proper performance of the Work. Unless included in the Lump Sum
General Conditions, the Cost of the Work shall include only the following:
6.3.1 Wages of direct labor costs of employees of Design-Builder perForming the Work at the
Site or, with Owner's agreement, at locations off the Site; provided, however, that the costs for
those employees of Design-Builder performing design services shall be calculated on the basis of
Prevailing market rates for design professionals performing such services or, if applicable, those
rates set forth in an exhibit to this Agreement. Wages for those employees performing construction
services shall be paid as follows: Basic wages and fringe benefits: The hourly wage (without
markup or labor burden) and fringe benefits paid by the Design-Builder 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,apprentices,journeymen,and foremen performing and/or directly
supervising the Work on the site. The premium portion of overtime wages is not included unless
pre-approved in writing by the Owner. The Design-Builder shall provide to the Owner copies of
payroll reco�ds, including certified payroll statements for itself and Subcontractors of any tier for the
period upon the Owner's request. Direct labor costs also include direct contributions to the State
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of Washington as industrial insurance, medical aid, and supplemental pension by class and rates
established by the Washington Department of Labor and Industries and contributions required by
the Federal Insurance Compensation Act(FICA), the Federal Unemployment Tax Act(FUTA)and
the State Unemployment Compensation Act(SUCA).
6.3.2 Wages or salaries of Design-Builder's supervisory and administrative personnel engaged
in the performance of the Work and who are located at the Site or working off-Site to assist in the
production or transportation of material and equipment necessary for the Work.
6.3.3 Wages or salaries of Design-Builder's personnel stationed at Design-Builder's principal or
branch offices, but only to the extent said personnel are approved in advance in writing by the
Owner.
6.3.4 Unless included in Lump Sum General Conditions, costs incurred by Design-Builder for
employee benefits, premiums, taxes, insurance, contributions and assessments required by law,
collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent
such costs are based on wages and salaries paid to employees of Design-Builder covered under
Sections 6.3.1 through 6.3.3 hereof.
6.3.5 The reasonable portion of the cost of travel, accommodations and meals for Design-
Builder's personnel necessarily and directly incurred in connecti�n with the performance of the
Work. Such costs must be approved in writing by Owner in advance.
6.3.6 Payments properly made by Design-Builder to Subcontractors and Design Consultants for
performance of portions of the Work, including any insurance and bond premiums incurred by
Subcontractors and Design Consultants. The costs for those employees performing design
senrices shall be calculated on the basis of prevailing market rates for design professionals
performing such services or, if applicable, those Hourly Rates set forth in Exhibit E. Contracts to
Subcontractors and Design-Consultants that are paid on the basis of a Lump Sum must be
approved in advance by the Owner, such approval shall not be unreasonably withheld.
6.3.7 Costs, including transportation, inspection, testing, storage and handling, of materials,
equipment and supplies incorporated or reasonably used in completing the Work. The material
costs 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 writing in advance by the Owner. Discounts and rebates based on prompt payment
need not be included, however, if the Design-Builder offered but the Owner declined the opportunity
to take advantage of such discount or rebate.
6.3.8 Costs (less salvage value) of materials, supplies, temporary facilities, machinery,
equipment and hand tools not customarily owned by the workers that are not fully consumed in the
pertormance of the Work and which remain the property of Design-Builder, including the costs of
transporting, inspecting, testing, handling, installing, maintaining, dismantling and removing such
items.
6.3.9 Costs of removal of debris and waste from the Site.
6.3.11 The reasonable costs and expenses incurred in establishing, operating and demobilizing
the Site office, including the cost of facsimile transmissions, long-distance telephone calls, postage
and express delivery charges, telephone service, photocopying and reasonable petty cash
expenses.
6.3.12 Rental charges and the costs of transportation, installation, minor repairs and
replacements, dismantling and removal of temporary facilities, machinery, equipment and hand
tools not customarily owned by the workers, which are provided by Design-Builder at the Site,
whether rented from Design-Builder or others, and incurred in the performance of the Work. The
rental charge the applicable rental cost as established by the lower of the local prevailing rate
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published in the Rental Rate Blue Book by Data Quest. 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. Rates and quantities of equipment rented that exceed the local fair market rental costs
shall be subject to the Owner's prior written approval. Total rental charges for equipment or tools
shall not exceed 75% of the fair market purchase value of the equipment or the tool. Actual,
reasonable mobilization costs are permitted if the equipment is brought to the site solely for the
change in the Work. The rental rates are the maximum rates allowable for equipment of modem
design and in good working condition and include full compensation for furnishing all fuel, oil,
lubrication, repairs, maintenance, and insurance. 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. 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. The rate for equipment necessarily
standing by for future use(and standing by for no longer than finro(2)weeks)on the changed Work
shall be 50% of the rate established above. The total cost of rental allowed shall not exceed the
cost of purchasing the equipment outright. 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 Owner prior to performing the Work.
6.3.12 Premiums for insurance and bonds required by this Agreement or the performance of the
Work.
6.3.13 All fuel and utility costs incurred in the performance of the Work.
6.3.14 Sales, use or similar taxes, tariffs or duties incurred in the performance of the Work, with
the exception of Washington State Sales Tax, which shall be paid outside the Phase 1 NTE or
GMP.
6.3.15 Costs for permits, royalties, licenses, tests and inspections incurred by Design-Builder as
a requirement of the Contract Documents.
6.3.16 The cost of defending suits or claims for infringement of patent rights arising from the use
of a particular design, process, or product required by Owner, paying legal judgments against
Design-Builder resulting from such suits or claims, and paying settlements made with Owner's
consent.
6.3.17 Costs incurred in preventing damage, injury or loss in case of an emergency affecting the
safety of persons and property.
6.3.19 Accounting and data processing costs related to the Work.
6.3.20 Fees paid by the Design-Builder for the approval of Statements of Intent to Pay Prevailing
Wages and certification of Affidavits of Wages Paid by the industrial statistician of the State
Department of Labor and Industries. The Design-Builder will remain responsible for the actual
submittal of the documents to the industrial statistician. In order to receive this reimbursement the
Design-Builder will be required to submit to Owner, a list of its subcontractors at all tiers and have
their Statements of Intent to Pay Prevailing Wages on file with the Owner.
6.3.21 Unit Prices established by the parties in Exhibit E.
6.3.22 Other costs reasonably and properly incurred in the performance of the Work to the extent
approved in writing by Owner and not included in the Design-Builder's Contingency, Design
Builder's Fee Percentage, the Lump Sum Fee, or the Lump Sum General Conditions.
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6.4 Other Methods of Compensation
Within the Phase 1 NTE or the GMP, the parties may agree to the following methods of pricing
Design-Builder's Compensation
6.4.1 Allowance Items and Allowance Values.
.1 Any and all Allowance Items,as well as their corresponding Allowance Values, are
set forth in Exhibit E or the GMP Amendment and are included within any
established NTE and the GMP, as applicable.
.2 Design-Builder and Owner have worked together to review the Allowance Items
and Allowance Values based on design information then available to determine
that the Allowance Values constitute reasonable estimates for the Allowance
Items. Design-Builder and Owner will continue working closely together during the
preparation of the design to develop Construction Documents consistent with the
Allowance Values. Nothing herein is intended in any way to constitute a guarantee
by Design-Builder that the Allowance Item in question can be perFormed for the
Allowance Value.
.3 No work shall be performed on any Allowance Item without Design-Builder first
obtaining in writing advanced authorization to proceed from Owner. Owner agrees
that if Design-Builder is not provided written authorization to proceed on an
Allowance Item by the date set forth in the Project schedule, due to no fault of
Design-Builder, Design-Builder may be entitled to an adjustment of the Contract
Time(s)and Contract Price.
.4 The Allowance Value for an Allowance Item includes the direct cost of labor,
materials, equipment, transportation, taxes and insurance directly associated with
the applicable Allowance Item. With the exception of Owner Directed Allowances,
all other costs,including design fees, Design-Builder's overall project management
and fixed general conditions costs, overhead and fee, are deemed to be included
in the original Contract Price, and are not subject to adjustment, regardless of the
actual amount of the Allowance Item.
.5 Whenever the actual costs for an Allowance Item is more than or less than the
stated Allowance Value, the Contract Price shall be adjusted accordingly by
Change Order, subject to Section 6.4.1.4; however, Design-Builder must provide
written notice of the difference between the actual cost and the Allowance Value
pursuant to the Changes provisions in the General Conditions.The amount of the
Change Order shall reflect the difference between actual costs incurred by Design-
Builder for the particular Allowance Item and the Allowance Value.
.6 The Owner and the Design Builder may designate certain Allowances as "Owner
Directed Allowances." Design Builder shall be compensated for Owner Directed
Allowances for the Cost of the Work associated with such allowances plus the Fee
Percentage. Items designated as "Owner Directed Allowances" shall not be
included in the calculation to determine the Lump Sum Fee.
6.4.2 Not To Exceed Sums
.1 The Owner and Design Builder may establish Not to Exceed ("NTE") Sums for
specific scopes of the Work. Any such NTE Sum will be negotiated between the
Owner and Design-Builder. The NTE Sum agreed upon by the Parties shall be
incorporated into the GMP Amendment or a Change Order, and the parties shall
include the following information:
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a. A specific description of the Scope of the Work that is subject to the NTE
Sum;
b. An updated Schedule of Values that incorporates the NTE Sum; and
c. Any milestone dates associated with the scope of the Work associated
with the NTE Sum.
.2 For each scope of work for which a NTE Sum has been established, the Design-
Builder shall be reimbursed for the scope of the Work as a Cost of the Work;
however, Design-Builder's compensation shall not exceed the NTE Sum without a
written Change Order.
.3 Design-Builder shall not request reimbursement for costs that are within the scope
of the NTE Sum unless those costs are identified in the Payment Application as
subject to the NTE Sum. Except as allowed in Section 6.4.4.1.b, costs that are
within the scope of the NTE Sum that are in excess of the NTE Sum shall be the
sole responsibility of the Design-Builder.
.4 NTE Sums may only be modified by Change Order pursuant to the General
Conditions.
6.4.3 Lump Sums
.1 The Owner and Design-Builder may establish Lump Sums for specific scopes of
the Work. Any such Lump Sum will be negotiated befinreen the Owner and Design-
Builder. The Lump Sum agreed upon by the Parties shall be incorporated into the
GMP Amendment or a Change Order, and the parties shall include the following
information:
a. A specific description of the Scope of the Work that is subject to the Lump
Sum;
b. An updated Schedule of Values that incorporates the Lump Sum; and
c. Any milestone dates associated with the scope of the Work associated
with the Lump Sum.
.2 For each scope of work for which a Lump Sum has been established, the Design-
Builder shall be compensated pursuant to the Schedule of Values set forth above
based on the percentage of the Scope of the Work subject to the Lump Sum that
has been completed.
.3 Design-Builder shall not request reimbursement for costs that are within the scope
of the Lump Sum unless those costs are identified in the Payment Application as
subject to the Lump Sum. Except as allowed in Section 6.4.4.1.b, costs that are
within the scope of the Lump Sum that are in excess of the Lump Sum shall be the
sole responsibility of the Design-Builder.
.4 Lump Sums may only be modified via Change �rder pursuant to the General
Conditions
6.4.4 Contingencies
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.1 The Parties shall establish, as part of any NTE and the GMP, the following
Contingencies which are available for Design-Builder's exclusive use for the below
described unanticipated costs it has incurred that are not the basis for a Change
Order under the Contract Documents (collectively "Contingency Items").
Continency Items include the costs described below, which are subject to written
approval by the Owner. The Owner may, in its discretion, apprvve other costs that
may be reimbursed under a Contingency; however, in no case shall the Design-
Builder be entitled to use the Contingency for payment of Liquidated Damages that
it may be assessed pursuant to this Agreement.
(a) Cost of the Work Contingency. The Cost of the Work Contingency is
reimbursed as a Cost of the Work. The Cost of the Work Contingency is
available to the Design-Builder for the following items:
(i) Trade buy-out differentials;
(ii) Escalation of materials; and
(iii) Other direct Costs of the Work that are not included in the Design-
Builder's Contingency, but only with the prior written consent of the
Owner.
(b) Design-Builder's Contingency. The Design-Builder's Contingency is
available to the Design-Builder for items that are not excluded by Section
6.5 hereof and include but are not limited to the following items:
(i) Overtime or acceleration;
(ii) Costs incurred by Design-Builder in repairing or correcting defective,
damaged or nonconforming Work(excluding any warranty or corrective
Work performed after Substantial Completion), provided that such
Work was beyond the reasonable control of Design-Builder, or caused
by the ordinary mistakes or inadvertence, and not the negligence, of
Design-Builder or those working by or through Design-Builder. If the
costs associated with such Work are recoverable from insurance,
Subcontractors or Design Consultants, Design-Builder shall exercise
its best efforts to obtain recovery from the appropriate source and
provide a credit to Owner if recovery is obtained;
(iii) Legal costs, court costs and costs of inediation and arbitration
reasonably arising from Design-Builder's performance of the Work,
provided such costs do not arise from disputes between Owner and
Design-Builder;
(iv) Subcontractor or other tier defaults to the extent not compensated by
any surety or bond; or
(v) Costs that are in excess of an NTE Sum or Lump Sum.
.2 The Design-Builder shall be reimbursed for Contingency Items in the same manner
as set forth in Section 6.3 of the Agreement; however, Design-Builder's
compensation for Contingency Items shall not cumulatively exceed the amount set
forth as the Design-Builder's Contingency in the applicable NTE or GMP without a
written Change Order. Design-Builder shall not be entitled to any Fee Percentage
for items reimbursed under Section 6.4.4.1.b, the Design-Builder's Contingency.
Further, the amounts included in the Design-Builder's Contingency set forth in
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Section 6.4.4.1.b shali be excluded from the calculation set forth in Section 6.2.3
to establish the Lump Sum Fee and the calculation set forth in Section 6.2.4 to
determine whether the GMP has changed.
.3 Prior to the final accounting, the Contingencies are not available to Owner for any
reason, including, but not limited to changes in scope or any other item which
woutd enable Design-Builder to increase an NTE or GMP under the Contract
Documents.
.4 Design-Builder shall provide Owner notice of all anticipated charges against the
Contingencies and shall provide Owner as part of the monthly status report
required by the General Conditions of Contract an accounting of the Contingency,
including all reasonably foreseen uses or potential uses of the Contingency in the
upcoming three (3) months. Design-Builder agrees that with respect to any
expenditure from a Contingency relating to a Subcontractor default or an event for
which insurance or bond may provide reimbursement, Design-Builder will in good
faith exercise reasonable steps to obtain performance from the Subcontractor
and/or recovery from any surety or insurance company.Design-Builder agrees that
if Design-Builder is subsequently reimbursed for said costs,then said recovery will
be credited back to the Contingency.
6.4.5 Lump Sum General Conditions Costs
.1 If the Parties enter into the GMP Amendment,the Parties shall establish an amount
for the Lump Sum General Conditions Costs. The parties shall determine the
portions of the Cost of the Work set forth in Section 6.3 that are included in the
Lump Sum General Conditions Costs, and the parties shall include a description
of such costs in the GMP Amendment. Unless the parties agree in writing
otherwise, the costs that will be included in the Lump Sum General Conditions
Costs are as follows:
a. Wages or salaries of Design-Builder's supervisory and administrative
personnel engaged in the performance of the Work and who are located at the
Site or working off-Site to assist in the production or transportation of material
and equipment necessary for the Work. Specifically, the following personnel
are included in the Lump Sum General Conditions Amount:
i. Project Executive
ii. Project Manger
iii. Superintendent and/or Construction Manager
iv. Quality Control Manager
v. Project Field Engineer and/or Design Manager
vi. Project Controls
vii. Project Scheduler
viii. Safety Manager
b. Wages or salaries of Design Builder's personnel stationed at Design Builder's
principal or branch offices, but only to the extent said personnel are approved
in advance of the performance of the Work in writing by the Owner.
c. Costs incurred by Design-Builder for employee benefits, premiums, taxes,
insurance, contributions and assessments required by law, collective
bargaining agreements, or which are customarily paid by Design-Builder, to
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the extent such costs are based on wages and salaries paid to employees of
Design-Builder covered under this Section.
d. The reasonable portion of the cost of travel, accommodations and meals for
Design-Builder's personnel necessarily and directly incurred in connection with
the performance of the Work and with the written consent of the Owner as set
forth below:
i. Meals and Incidental Expenses: Meals and incidental expenses will be
limited to the Federal Per Diem rate for meals and incidentals established
for the location where lodging is obtained. Federal Per Diem guidelines
which includes the meal breakdown and Federal Per Diem rates for other
locations can be found at wvwv.qsa.qov.
ii. Lodging: Lodging will be billed at cost, including applicable taxes, not to
exceed the Federal Per Diem maximum lodging rate for the location where
the work is being pertormed.
iii. Travel:Air travel(at coach class or equivalent),airport shuttles,etc. billed at
cost. Ground transportation by privately owned vehicle, if utilized, billed at
the Intemal Revenue Service mileage rate for privately owned vehicles in
effect at the time of travel. Expenses for a rental car(including fuel),at cost,
in the ratio of one mid-size class rental car for each three Contractor's
personnel directly engaged in performance of the work at the prevailing
rental rates then in effect. Rental car options such as refueling fees, GPS,
collision&liability insurance,etc.will not be reimbursed by the Owner unless
such options are approved in advance by the Owner's Representative.
Appropriate insurance coverage should be included in the Contractor's
insurance policies.
e. The reasonable costs and expenses incurred in establishing, operating and
demobilizing the Site office, including the cost of facsimile transmissions,
long-distance telephone calls, postage and express delivery charges,
telephone service, photocopying and reasonable petty cash expenses.
f. Premiums for insurance and bonds required specifically by this Agreement or
the performance of the Work by the Design Builder.
g. Accounting and data processing costs related to the Work.
h. Fees paid by the Design-Builder for the approval of Statements of Intent to
Pay Prevailing Wages and certification of Affidavits of Wages Paid by the
industrial statistician of the State Department of Labor and Industries. The
Design-Builder will remain responsible for the actual submittal of the
documents to the industrial statistician and the determination of the locality of
the work to confirm the appropriate classification of work. In order to receive
this reimbursement, the Design-Builder will be required to submit to Owner a
list of its subcontractors at all tiers and have their Statements of Intent to Pay
Prevailing Wages on file with the Owner.
i. General administrative costs not specifically listed in this subsection, including
but not limited to the following:
i. Shop Drawing Reproduction
ii. Construction Schedule 8� Updates
iii. Safety/Security
iv. Field Office Set-up(mobilization/demobilization)
v. O�ce Supplies
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vi. Telephone System
vii. Telephone Service Charge
viii. Computer Network/System Set-up
ix. Courier Service
x. Postage (Fed-X, USPS)
xi. Furniture/Equipment
xii. Office Cleaning
xiii. Project Superintendent Vehicle
xiv. Computers
xv. Copy Machine
xvi. Temporary Electric Hook-up/Removal
xvii. Temporary Electric Material
xviii. Project Signage
xix. Temporary Water Hook-up/Removal
xx. Drinking Water&Supplies
xxi. Chemical Toilets
xxii. O&M Manuals
xxiii. Project Record Documents
xxiv. Field Engineering/Layout Survey
.2 For the Costs of the Work that are included in the Lump Sum General Conditions
Costs, the Design-Builder shall no longer be entitled to be reimbursed for such
costs as part of the Cost of the Work, and the Design Builder's sole compensation
for the costs set forth in the identified General Conditions shall be through the
Lump Sum General Conditions Costs.
.3 The Owner shall have the right to examine the back-up documentation establishing
the Lump Sum General Conditions Costs, including but not limited to all estimates,
proposals, contracts and other financial documentation on a transparent basis.
.4 The Lump Sum General Conditions Costs shall only be modified if the Design-
Builder is entitled to compensation for a delay pursuant to Section 8.2 of the
General Conditions. Any modification to the Lump Sum General Conditions Costs
shall be calculated as follows:
a. The Design Builder shall be entitled to receive a liquidated daily rate for
extended General Conditions Costs ("Design-Builder's Delay Rate")for each
day that the Contract Time is extended pursuant to Section 8.2 of the General
Conditions.
i. The Design-Builder's Delay Rate shall be calculated by dividing the
Lump Sum General Conditions Costs by the number of days in the
Contract Time set forth in the GMP Amendment for Phase 2.
ii. Then, the Design-Builder's Delay Rate is multiplied by the number of
days that the Contract Time is extended for Design-Builder's Delay,
subject to a determination of entitlement pursuant to Article 8 of the
General Conditions.
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iii. The result from the Design-Builder's Delay Rate multiplied by the
number of days is the Extended General Conditions Costs which shall
be added to the Lump Sum General Conditions Costs by Change
Order and paid to the Design Builder pursuant to the Schedule of
Values, subject to a determination of entitlement pursuant to Article 8
of the General Conditions.
b. The Design-Builder's Delay Rate shall not apply to delays occurring after
Substantial Completion is achieved.
c. The Parties agree that determining the Design Builder's damages for delay in
Phase 2 would be extremely difficult or impracticable to determine and that the
Design-Builder's Delay Rate, as calculated in this Section 6.4.5.4, is a
reasonable estimate of and reasonable sum for such damages; therefore, the
Design-Builder's Delay Rate shall be payable to the Design Builder as
liquidated damages and not as a penalty.
6.4.6 Unit Prices and Hourly Rates
.1 Any Unit Prices and Hourly Rates shall be agreed upon in writing and set forth in
Exhibit E to the Agreement. Design-Builder shall not charge more than a specified
Unit Price or Hourly Rate than the amount set forth in Exhibit E, as modified
through the Contract Documents.
.2 Once established, Unit Prices and Hourly Rates shall not be subject tv audit and
may only be changed by Change Order.
.3 Design-Builder must maintain a record of the number of Unit Prices and Hours
billed using Hourly Rates for review by Owner.
6.5 Non-Reimbursable Costs.
6.5.1 The following shall not be deemed as costs of the Work:
.1 Compensation for Design-Builder's personnel stationed at Design-Builder's
principal or branch offices, except as expressly provided for in Section 6.3 hereof.
.2 Overhead and general expenses, except as provided for in Section 6.3 hereof.
.3 The cost of Design-Builder's capital used in the performance of the Work.
.4 Costs that would cause the Phase 1 NTE, the GMP, the Cost of the Work
Contingency, or the Design Builder's Contingency as adjusted in accordance with
the Contract Documents, to be exceeded.
6.6 Project Phases.
6.6.1 Phase 1
.1 Compensation. During Phase 1, the Design Builder shall be compensated for
the following:
a. The Cost of the Work set forth in Section 6.3;
b. Design-Builder's Fee Percentage set forth in Section 6.2.1 multiplied by
the Cost of the Work; and
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d. Contingency Items charged under Section 6.4.4.1.b.
.2 Phase 1 Not to Exceed Amount. Design-Builder guarantees that its
Compensation during Phase 1 shall not exceed the Phase 1 Not to Exceed Amount
("Phase 1 NTE") of three hundred and eiphtv eic�ht thousand nine hundred and sixtv one
dollars and seventy six cents ($388.961.76). Documents used as a basis for the Phase 1
NTE shall be identified in Exhibit D to this Agreement. Design-Builder agrees that it will be
responsible for paying all costs of completing the Work which exceed the Phase 1 NTE, as
adjusted in accordance with the Contract Documents.
.3 The Phase 1 NTE includes the Cost of the Work in the amount of three hundred
twenty five thousand six hundred Dollars ($325,600.00) and the Design-Builder's
Contingency in the amount of thir#y two thousand five hundred and sixty Dollars
($32,560.00) plus 8.6% WSST in the amount of thirtv thousand eiqht hundred and one
dollars and seventy six cents ($30,801.76}.
.4 The Phase 1 Completion Date is June 30, 2022.
.5 GMP Proposal.At the conclusion of Phase 1, Design-Builder shall submit a GMP
Proposal to Owner which shall include the deliverables set forth in Exhibit C, unless the
parties mutually agree otherwise.
.6 Submission of the GMP Proposal. Submission of the GMP Proposal
constitutes Design-Builder's representation and agreement that it has adequately
investigated the site and the project parameters, the Project is adequately defined, the
Final Basis of Design Documents are sufficiently defined to provide an accurate GMP
and Project Schedule, and subject to the assumptions and clarifications in the GMP
Proposal, the Project is sufficiently clear and understandable for the Design-Builder to
perform the Work in accordance with the Contract Documents for an amount that will not
exceed the Original GMP.
.7 Review and Adjustment to GMP Proposal.After submission of the GMP
Proposal, Design-Builder and Owner shall meet to discuss and review the GMP
Proposal. If Owner has any comments regarding the GMP Proposal or finds any
inconsistencies or inaccuracies in the information presented, it shall promptly give written
notice to Design-Builder of such comments or findings. If appropriate, Design-Builder
shall, upon receipt of Owner's notice, make appropriate adjustments to the GMP
Proposal. To assist in the Owner's review of the GMP Proposal, the Design Builder shall,
upon the Owner's Request, provide all information, including but not limited to all data,
reports, cost analysis, pricing, designs and specifications on which the Design Builder
relied or used as a basis for the GMP Proposal. The Owner shall make its best efforts to
review any revised GMP Proposal within thirty(30)days of receipt of the revised GMP
Proposal.
.8 Acceptance of GMP Proposal. If Owner accepts the GMP Proposal, as may be
amended by Design-Builder, the terms of the GMP Proposal shall be set forth in the GMP
Amendment. At the Owner's option, the GMP may be converted into a Lump Sum.
.9 Failure to Accept the GMP Proposal. If Owner rejects the GMP Proposal, the
GMP Proposal shall be deemed withdrawn and of no effect. In such event, Owner and
Design-Builder shall meet and confer as to how the Project will proceed, with Owner
having the following options:
a. Owner may suggest modifications to the GMP Proposal, whereup�n, if
such modifications are accepted in writing by Design-Builder, the GMP
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Proposal shall be deemed accepted and the parties shall proceed in
accordance with Section 6.6.1.5 above;
b. Owner may terminate this Agreement for convenience in accordance with
Article 8 hereof.
.10 Performance of Work After Submission of GMP Proposal. The Design-Builder
shall not perform any Work after the submission of the GMP Proposal until the Owner has
approved and signed the GMP Amendment unless the Design-Builder obtains the Owner's
prior, written consent to perform such Work and only to the extent that such Work is
expressly described in writing in such written consent. If Design-Builder performs such
Work, Design-Builder shall be compensated pursuant to the written approval.
6.6.2 Phase 2 Post GMP Period.
.1 Compensation. During Phase 2, the Design Builder shall be compensated for
the following, all subject to the GMP:
a. The Cost of the Work set forth in Section 6.3;
b. Design-Builder's Lump Sum Fee established pursuant to Section 6.2.3;
c. Any Lump Sums established pursuant to Section 6.4.3;
d. Contingency Items charged under Section 6.4.4.1.b; and
e. Design-Builder's Lump Sum General Conditions Costs established
pursuant to Section 6.4.5.
.2 GMP The total compensation paid to Design-Builder for this Project shall not
exceed the GMP, as amended pursuant to this Contract. By agreeing to the GMP
Amendment,the Design-Builder understands that if the Work cannot be completed
for the agreed GMP, any additional costs shall be the responsibility of the Design-
Builder, and Design-Builder hereby assumes liability for such costs without
reimbursement by the Owner.
.3 If the parties decide to convert the GMP into a Lump Sum, Design-Builder shall be
compensated pursuant to Section 6.4.3 of the Agreement.
6.6.3 Savings.
.1 If the sum of the actual Cost of the Work and Design-Builder's Fee (and, if
applicable, any prices established under Section 6.1.2 hereo� is less than the
GMP, as such GMP may have been adjusted over the course of the Project, the
difference ("Savings")shall go to 100%to the Owner.
Article 7
Procedure for Payment
7.1 Progress Payments.
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7.1.1 Design-Builder shall submit to Owner on the twenty fifth (25th) day of each month,
beginning with the first month after the Date of Commencement, Design-Builder's Application for
Payment in accordance with Article 6 of the General Conditions of Contract.
7.1.2 Owner shall make payment within thirty (30) days after Owner's receipt of each properly
submitted and accurate Application for Payment in accordance with Article 6 of the General
Conditions of Contract, but in each case less the total of payments previously made, and less
amounts properly withheld under Section 6.3 of the General Conditions of Contract.
7.1.3 If Design-Builder's Fee under Section 6.2 hereof is a lump sum amount, the amount of
Design-Builder's Fee to be included in Design-Builder's monthly Application for Payment and paid
by Owner shall be proportional to the percentage of the Work completed, less payments previously
made on account of Design-Builder's Fee.
7.2 Retainage on Progress Payments.
7.2.1 The Owner will withhold retainage pursuant to RCW Chapter 60.28, and Owner shall
release such retainage pursuant to state law. Pursuant to RCW Chapter 60.28,the Design-Builder
may submit a bond in lieu of the retainage that the Owner would otherwise keep under the terms
of this Contract and pursuant to applicable law. Any such bond submitted in lieu of retainage must
be on the form approved by the Owner. In the event the Design-Builder fails at any time to pay
persons protected under RCW Chapter 60.28 or the Owner has reason to believe that the Owner
or other obligee under the bond has a claim against the retainage or for other good cause, the
Owner may, at its option, resume retaining from monies earned by the Design-Builder in such
amount as it would otherwise be entitled to retain had the bond not been accepted. Nofinrithstanding
the Owner's resuming such retainage, said bond shall remain in full force and effect to the extent
of its penal sum, limited to the amount of retainage released to the Design-Builder. After the
Design-Builder has paid protected persons or otherwise cured any default, the Owner may, at its
option, again release retainage pursuant to the terms of the bond.
7.3 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in
accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design-
Builder's properly submitted and accurate Final Application for Payment pursuant and subject to RCW
Chapter 60.28 and RCW Chapter 39.08 and all applicable laws and regulations, provided that Design-
Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions
of Contract.
7.4 Interest. Payments due and unpaid by Owner to Design-Builder, whether progress payments or
final payment, shall bear interest commencing five (5) days after payment is due at the statutory rate of
interest per month until paid.
7.5 Record Keeping and Finance Controls. Design-Builder acknowledges that this Agreement is to
be administered on an "open book" arrangement relative to Costs of the Work. Design-Builder shall keep
full and detailed accounts and exercise such controls as may be necessary for proper financial
management, using accounting and control systems in accordance with generally accepted accounting
principles and as may be provided in the Contract Documents. During the performance of the Work and for
a period of six (6) years after Final Payment, Owner, Owner's accountants, the Washington State
Department of Commerce and the Washington State Auditor shall be afforded access to, and the right to
audit from time-to-time, upon reasonable notice, Design-Builder's records, books, correspondence,
receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to the Work, all of
which Design-Builder shall preserve for a period of six(6)years after Final Payment. Such inspection shall
take place at Design-Builder's offices during normal business hours unless another location and time is
agreed to by the parties.Any multipliers or markups agreed to by the Owner and Design-Builder as part of
this Agreement are only subject to audit to confirm that such multiplier or markup has been charged in
accordance with this Agreement, with the composition of such multiplier or markup not being subject to
audit.
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Article 8
Termination for Convenience
8.1 Upon ten (10) days' written notice to Design-Builder, Owner may, for its convenience and without
cause, elect to terminate all or a portion of this Agreement. In such event, Owner shall pay Design-Builder
for allowable costs and subject to any established Not to Exceed Amount or GMP:
8.1.1 All Work executed and for proven loss, cost or expense in connection with the Work;
8.1.2 The reasonable costs and expenses attributable to such termination, including
demobilization costs and amounts due in settlement of terminated contracts with Subcontractors
and Design Consultants; and
8.1.3 The fair and reasonable sums for overhead and profit on the sum of items 8.1.1 and 8.1.2
above based on Design-Builder's Fee Percentage, provided, however, if a Lump Sum Fee has
been established,then the Lump Sum Fee shall only be modified pursuant to Section 6.2.4 above.
8.2 If Owner terminates this Agreement pursuant to Section 8.1 above and proceeds to design and
construct the Project through its employees,agents or third parties, Owner's rights to use the Work Product
shall be as set forth in Section 4.3 hereof. Such rights may not be transferred or assigned to others without
Design-Builder's express written consent and such third parties' agreement to the terms of Article 4.
Article 9
Representatives of the Parties
9.1 Owner's Representatives.
9.1.1 Owner designates the individual listed below as its Senior Representative ("Owner Senior
Representative"), which individual has the authority and responsibility for avoiding and resolving
disputes under Section 10.2.3 of the General Conditions of Contract: (identiry individuar's name, tit�e,
address and telephone numbers)
Steve Worley
Public Works Director
525 N. 3ro Avenue
PO Box 293
Pasco,WA 99301
(509) 543-5738
9.1.2 Owner designates the individual listed below as its Owner's Representative, which
individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of
COI1tCaCt: (ldentify individua!'s name,title,address and telephone numbers)
Becky Blankenship
Vice President
719 2"d Ave, Suite 1075
Seattle,WA 98104
(509)385-9127
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9.2 Design-Builder's Representatives.
9.2.1 Design-Builder designates the individual listed below as its Senior Representative
("Design-Builder's Senior Representative"),which individual has the authority and responsibility for
avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (rdentiry
individual's name,title,add�ess and telephone numbers)
Gene Tanaka
President
9628 South Marchs Point Rd.
Anacortes,WA 98221
360-299-8222,cell 206-310-1725
qtanakaCc�tbailev.com
9.2.2 Design-Builder designates the individual listed below as its Design-Builder's
Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of
the General Conditions of Contract: (�dent;ry indiv;duaPs name,title,address and felephone numbers)
Russ Gibbs
President
9628 South Marchs Point Rd.
Anacortes,WA 98221
360-630-5830,cell 360-202-4185
rqibbsCa�tbailey.com
Article 10
Bonds and Insurance
10.1 Insurance. Design-Builder and Owner shall procure the insurance coverages set forth in the
Insurance Exhibit attached hereto and in accordance with Article 5 of the General Conditions of Contract.
10.2 Bonds and Other Performance Security. Upon execution of this Agreement, Design-Builder
shall provide a performance and a labor and material bond, pursuant to RCW Chapter 39.08, equal to one
hundred percent(100%)of the Phase 1 NTE in the form set forth as Exhibit B. Upon execution of the GMP
Amendment, Design-Builder shall provide a perFormance and labor and material bond, pursuant to
RCW Chapter 39.08, equal to one hundred percent(100%)of the GMP in the form set forth as Exhibit B.
10.3 All bonds fumished by Design-Builder shall be from a surety that is qualified and registered to
conduct business in the state of Washington.
Article 11
Other Provisions
11.1 Other provisions, if any, are as follows: (lnsert any additional provisions)
11.2 Wages.
11.2.1 The Design-Builder and its Subcontractors, Consultants and Sub-Consultants shall pay all
laborers, workmen, or mechanics employed by it or them in the performance of this Contract the
applicable state prevailing wage rate required by(RCW Chapter 39.12). The schedule of prevailing
wage rates for the locality or localities of the Work is determined by the Industrial Statistician of the
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Department of Labor and Industries. It is the Design-Builder's responsibility to verify the applicable
prevailing wage rate.
11.2.2 Before payment is made by the Owner to the Design-Builder for any Work pertormed by
Design-Builder or any Subcontractor, Consultant or Sub-Consultant whose work is included in the
application for payment,the Design-Builder shall submit, or shall have previously submitted,to the
Qwner a Statement of Intent to Pay Prevailing Wages, approved by the Department of Labor and
Industries, certifying the rate of hourly wage paid and to be paid each classification of employees,
laborers, workers, or mechanics employed for the Work by Design-Builder, Consultants,
Subcontractors and Sub-Consultants. The "Statement of Intent to Pay Prevailing Wages" shall
include: (1) the Design-Builder's registration number; and (2) the prevailing wages under RCW
39.12.020 and the number of workers in each classification. Each voucher claim submitted by the
Design-Builder for payment on a project estimate shall state that the prevailing wages have been
paid in accordance with the prefiled statement or statements of intent to pay prevailing wages on
file with the Owner.
11.2.3 Design-Builder and each Subcontractor required to pay the prevailing rate of wages shall
post in a location readily visible at the job site: (1)a copy of a "Statement of Intent to Pay
Prevailing Wages" approved by the industrial statistician of the Department of Labor and
Industries; and (2)the address and telephone number of the industrial statistician of the Depart-
ment of Labor and Industries where a complaint or inquiry concerning prevailing wages may be
made.
11.2.4 Prior to release of the retainage,the Design-Builder shall submit to the Owner an Affidavit
of Wages Paid, approved by the Department of Labor and Industries, for the Design-Builder and
every Consultant, Sub-Consultant, and Subcontractor of any tier that performed work on the
Project.
11.2.5 Disputes regarding prevailing wage rates shall be referred for arbitration to the Director of
the Department of Labor and Industries. The arbitration decision shall be final and conclusive and
binding on all parties involved in the dispute as provided for by RCW 39.12.060.
11.2.6 Each Application for Payment submitted by Design-Builder shall state that prevailing wages
have been paid in accordance with the prefiled statement(s)of intent, as approved. Copied of the
approved intent statements(s) shall be posted on the job site with the address and telephone
number of the Industrial Statistician of the Department of Labor and Industries where a complaint
or inquiry concerning prevailing wages may be made.
11.2.7 In compliance with WAC Chapter 296-127, Design-Builder shall pay to the Department of
Labor and Industries the currently established fee(s)for each statement of intent and/or affidavit of
wages paid submitted to the Department of Labor and Industries for certification.
11.2.8 Consistent with WAC 296-127-320, the Design-Builder and all Consultants, Sub-
Consultants and Subcontractors shall submit a certified copy of payroll records if requested.
11.3 Hours of Labor
11.3.1 Design-Builder shall comply with applicable provisions of RCW Chapter 49.28, and such
provisions are incorporated herein by reference.
11.3.2 RCW 49.28 permits entities performing public works contracts to enter into an agreement
where employees work up to ten hours in a calendar day, subject to the provisions of the statute.
No such agreement may provide that employees work ten-hour days for more than four calendar
days a week. Any such agreement is subject to approval by the employees.
11.4 OfF Site Prefabricated Items.
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11.4.1 In accordance with RCW 39.04.370, Design-Builder shall submit certain information
about off-site, prefabricated, nonstandard, project specific items produced under the terms of the
contract and produced outside Washington as a part of the Affidavit of Wages Paid form filed with
the Washington State Department of Labor and Industries.
11.5 Nondiscrimination.
11.5.1 No individual shall be excluded from participation in, denied the benefit of, subjected to
discrimination under, or denied employment in the administration of or in connection with this
contract because of age, sex, race, color, religion, creed, marital status,familial status, sexual
orientation, national origin, honorably discharged veteran or military status, the presence of any
sensory, mental or physical disability, or use of a service animal by a person with disabilities. The
Design-Builder agrees to comply with and to require that all subcontractors comply with, Section
504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act, as applicable.
11.6 Business Registration Requirement.
11.6.1 Design-Builder represents and warrants that it and all of its subconsultants,
subcontractors and suppliers of every tier are properly licensed to perform the work for which they
are contracted and have all applicable business licenses, including but not limited to any licenses
or registrations required by the State of Washington and any other regulatory authority. Design-
Builder shall be solely responsible for contacting the State of Washington Business License
Services at http://bls.dor.wa.qov or 1-800-451-7985 to obtain a business registration.
11.7 Contractor's Registration Requirement.
11.7.1 Design-Builder represents and warrants that it and all of its subconsultants,subcontractors
and suppliers perForming construction work are properly licensed pursuant to RCW 39.06.010.
11.8 Apprenticeship Program
11.8.1 Design-Builder shall comply with the apprenticeship program set forth in RCW 39.04.320,
as applicable. Not applicable this project.
11.9 Submission of Information to CPARB and OMWBE
Design-Builder and its subcontractors and designers shall submit to Owner project information
required by the Washington State Capital Projects Advisory Board pursuant to RCW 39.10.
Specifically,and without limitation, Design-Builder must report to Owner its utilization of businesses
certified by OMWBE and veteran certified businesses. Minimum participation requirements do not
apply to this project.
11.10 Inclusion Plans
Design-Builder shall submit to Owner inclusion plans for underutilized form as subcontractflrs and
suppliers including, but not limited to, the office of minority and women's business enterprises
certified businesses,veteran certified businesses, and small businesses as required in Exhibit C.
11.11 No Party is Drafter
Each party has had an opportunity to negotiate the provisions of this Agreement and its Exhibits
and attachments, and neither party shall be construed as the drafter.
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In executing this Agreement, Owner and Design-Builder each individually represents that it has the
necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary
corporate approvals to execute this Agreement, and perForm the services described herein.
OWNER: DESIGN-BUILDER:
T BAILEY INC.
City of Pasco (Name of Desi i de
�
(Signafure) ignature)
Gene Tanaka
(Printed Name) (Printed Name)
President
(Title) (Title)
Date: Date: 10/27/21
Caution: An original DBIA dacument has this caution printed in blue. This is a printable copy and
an original assures that changes will not be obscured as may occur when dacuments are
reprocluceci.
DBIA Document No.530 Page 23
Standard Form of Agreement Between Owner and Design-Builder-Cost Plus Fee with an Option for a GMP
m 2010 Design-Build Institute of America;changes�2021 Thaxton Parkinson P�LC