SECTION D

AGREEMENT FORM AND GENERAL TERMS AND CONDITIONS

C O N T R A C T

between

XXXXXXXXXX

and

Port of Skamania County

For the

“Stevenson Shoreline Restoration and Enhancement Project”

THIS AGREEMENT, made and entered into this _ day of [Date____, 2017], by the between the Port of Skamania County, Skamania County, Washington, a municipal corporation, hereinafter called the "PORT", and XXXXXX Company, hereinafter called the "CONTRACTOR".

W I T N E SSE T H:

The Contractor hereby agrees to provide the qualified personnel, materials, mechanized equipment, tools, and instruments necessary for shoreline restoration located along the Stevenson, WA waterfront, as detailed by and in accordance with the Scope of Work, the Project Specification and Drawings prepared by Flowing Solutions (Exhibit A; Title: “ROCK CREEK DREDGE MITIGATION—STEVENSON SHORELINE ENHANCEMENT—PORT OF SKAMANIA—June 20, 2008), and the Contractor’s Bid Form dated [Date____, 2017] all of which are attached hereto and by reference made a part hereof. All work shall be performed in a workmanlike manner, and in accordance with generally accepted engineering and construction methods, and to the satisfaction of the Port's project manager.

The Port hereby contracts to pay for the same according to Scope of Work, the Project Specification and Drawings, and the schedule of unit and/or itemized prices found in Section B, Bid Response Form (pages 6-9) at the time and in manner and upon the conditions provided for in this contract.

The Contractor agrees to complete the Work within ______( ) consecutive calendar days from date of the execution of the contract by the Port (the “Contract Completion Period”).

The Port will make payments to the Contractor as set forth in the General Terms and Conditions of the Contract and as described below:

The Port or its representative shall review the Contractor's requests for payment to determine the value of the work satisfactorily performed and materials in place, and the Port shall, upon receipt of said written estimate, pay to the Contractor ninety-five percent (95%) of such approved, estimated value. The remaining five percent (5%) of such approved estimated value shall be retained and held in trust in accordance with RCW 60.20.010 until the final acceptance of the work by the Port. Whenever, in the opinion of the Port's representative, the work covered by the Contract has been completed, it shall so certify in writing to the Port and shall submit a final estimate showing the total amount of work completed by the Contractor and its value under and according to the terms of the Contract Documents. The final estimate shall cover all amounts due the Contractor, all deductions made as provided for in the Contract Documents, and the total of all previous payments. After the acceptance of the work by the Port, the Port shall pay the Contractor the amounts due it under the final estimate, except for the amounts held or retained under the terms of the Contract Documents. Before final payment of the retained percentage, the Contractor must file with the Port a release from the Washington State Department of Labor and Industries and a release from the Washington State Tax Commission, in addition to releases from any persons furnishing labor or supplies who have filed liens according to RCW 39.08.030(1) and 60.28.011. The Contractor must make application for the release from the Department of Labor and Industries, and the Port will make the request for the release from the Washington State Tax Commission. There will be a hold period on the final payment of at least sixty (60) days after the final acceptance by the Port.

The Contractor shall furnish surety bonds to the Port of Skamania County in the form attached hereto, and they shall be conditioned upon the full, complete and faithful performance of all the terms and conditions of this Contract and payment for all materials and labor and of all applicable taxes. The bonds shall be executed by a bonding company authorized to do business in the State of Washington that meets the requirements stated in the Contract Documents, and the bonds shall be in an amount equal to the full amount of the Contract including Washington State Sales Tax.

The Contractor shall obtain all insurance as required in the Contract Documents attached hereto.

All State and Local Sales Taxes will be paid by the Port to the Contractor, and the Contractor shall immediately make all payments as required by law. Proof of payment shall be provided by the Contractor to the Port prior to the release of any retainage.

All provisions and requirements of the laws of the State of Washington pertaining to political subdivisions and applicable hereto, including those listed in the Contract Documents, are hereby referred to and incorporated herein as a part of this Contract and as the Contractor's obligations under the terms of this Contract.

In the event the Contractor shall fail to perform the work as required by the Contract Documents and to the approval of the Port, and as proposed by the Bid of the Contractor, or in the event the Contractor shall fail to complete, and/or perform any of the conditions and provisions herein contained, then the Port shall have the right to declare this Contract terminated and to retain such sums then due the Contractor hereunder, and to relet this Contract to secure the completion thereof, and to proceed to enforce any other remedy or remedies permitted by law, as described in the Contract Documents.

The Contractor's Bid Proposal, submitted in answer to Public Works Contract Solicitation for “Stevenson Shoreline Enhancement” dated [Date____, 2017], and the aforesaid Contract Documents shall be and are included as part of this Contract.

If for any reason any provision of the Contract is void or unenforceable, the remaining provisions thereof shall nevertheless remain valid. The void or unenforceable provision shall be replaced by the parties by another provision of a similar economic result. The parties accordingly agree to replace such provisions with the least possible delay by means of a suitable amendment to the Contract whereby any changes in the economic circumstances shall be reflected in the parties' obligations.

EXECUTED IN DUPLICATE this day of [Date, 2017].

CONTRACTOR: PORT OF SKAMANIA COUNTY:

By:By:

Name:Name:Pat Albaugh

Title: Title:Executive Director

GENERAL TERMS AND CONDITIONS

1. BID/CONTRACT DOCUMENT and ORDER OF PRECEDENCE - The Public Works Contract Solicitation for “Stevenson Shoreline Restoration and Enhancement Project” dated [Date______, 2017].are incorporated as the primary elements of this contract. Also included as part of this Contract Agreement are the following Port documents:

●Bid Response Form dated [Date______, 2017].

In the event of an inconsistency in this contract, the inconsistency shall be resolved by giving precedence in the following order:

●Applicable Federal and State of Washington statutes and regulations

●Contract Documents

●Any other provision, term or material incorporated herein by reference or otherwise incorporated

  1. LICENSING, REGISTRATION AND ACCREDITATION-All Contractors shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements/standards necessary to conduct business and engage in the performance of this contract.
  1. PREVAILING WAGE REQUIREMENTS - The hourly minimum rate of wage paid to all laborers, workers, and mechanics employed in the performance of all or any part of this Contract, by either the Contractor, Subcontractors, Sub-Subcontractors, or other person doing or contracting to do the whole or part of the work contemplated by this Contract shall not be less than the prevailing rate of wages to be paid to all workmen, laborers, or mechanics in each trade or occupation as required for and provided in RCW 39.12, as amended. Inasmuch as the Contractor will be held responsible for paying the prevailing wages, it is imperative that all contractors familiarize themselves with the current wage rates before submitting bids based on these specifications.

The Industrial Statistician of the Washington State Department of Labor and Industries publishes the current prevailing wage rates on their web site and by this reference herein are included and incorporated in these Contract Documents. In referencing such rates, the Port does not imply or warrant the Contractor will find labor available at those rates. It is the Contractor's sole responsibility to determine the wage rates it will actually have to pay.

In case any dispute arises as to what 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 the Director's decision therein shall be final and conclusive and binding on all parties involved in the dispute, as provided for by Section39.12.060 of the Revised Code of Washington, as amended.

In connection with this Contract, the Contractor will be required, pursuant to Section39.12.040 of the Revised Code of Washington to file with the Port a "Statement of Intent to Pay Prevailing Wages" and an "Affidavit of Wages Paid" for itself and all Subcontractors and Sub-Subcontractors. The Statements require the "approval" of, and the Affidavits the "certification" of, the industrial statistician of the State Department of Labor and Industries before the Statements or Affidavits are to be presented to the Port. The Department of Labor and Industries charges a fee for such approval and certification, which fee shall be paid by the Contractor. Any change in the fee will not be grounds for revision in Contract Sum.

All workers delivering fill, sand, gravel, crushed rock, transit/concrete mix, asphalt or other similar materials and all workers removing any materials from the construction site as required by the specifications are subject to the provisions of RCW chapter 39.12 and are entitled to the appropriate area standard wage. For purposes of this contract, such materials are for specified future use and per WAC 296-127-018, delivery and pick-up of the above listed material constitutes incorporation.

The Port cannot make payments to the Contractor until the Contractor and all Subcontractors and Sub-subcontractors have submitted a “Statement of Intent to Pay Prevailing Wages (Intent)” that has been approved by L & I. The Intent form is to be filed immediately after the contract is awarded and before work begins.

In accordance with RCW 60.28, The Port will not release final retainage (5% of the contract) until all contractors, subcontractors and sub-subcontractors have submitted an “Affidavit of Wages Paid (Affidavit)” that has been certified by L & I. (Reference: RCW 39.12.040).

The Contractor is required to include this provision in all sub-contracts and shall require that it be placed in all sub-sub contracts.

  1. DISPUTES- In case any dispute arises as to what 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 decision therein shall be final, conclusive and binding on all parties involved in the dispute as provided for by RCW 38.12.060 as amended.
  1. LIQUIDATED DAMAGES- The Contractor agrees that the Work shall be prosecuted regularly, diligently and without interruption at such rate of progress as will ensure full completion thereof within the time specified under the Contract. It is expressly understood and agreed, by and between the Contractor and the Port, that the time allowed for the completion of the work described herein is a reasonable time for the completion of same, taking into consideration the nature of this Contract, the average climate range and usual industrial conditions prevailing in the locality of the Project. Since time is of the essence, the Contractor and the Port understand and agree that a breach of the Contract as to completion on time will cause damage to the Port but further agree that such damages cannot be accurately measured or that ascertainment will be difficult. Therefore, the parties agree that for each and every calendar day the Work or any portion thereof shall remain uncompleted after the end of the Contract Completion Period, or as extended by the Port, the Contractor does hereby agree to pay the Port a base administrative cost of twenty five thousand dollars ($25,000) for the cost of additional permitting, if any, required by the delay, plus the amount of five hundred dollars ($500.00) per day, not as penalty but as liquidated damages for such breach of contract as hereinafter set forth.

This provision does not exclude the recovery of damages by the Port for breach by the Contractor of any other provisions of the Contract Documents.

  1. INSURANCE LIABILITY REQUIREMENTS- Worker’s Compensation coverage on all employees with the Department of Labor and Industries is required for injury to workers arising out of contract operations. The Contractor will maintain a comprehensive General Liability insurance policy with a reputable insurance company acceptable to the Port and written with limits of at least $1,000,000, each occurrence; $1,000,000, personal injury; $2,000,000 general aggregate and $500,000, each occurrence property damage liability. The comprehensive General Liability Policy will provide coverage for:

●Premises and operations of the Contractor.

●Products - completed operations.

●Owners and Contractors protective.

●Contractual liability.

●Automobiles, including all owned, hired and leased vehicles and employees auto non-ownership liability.

●Employer’s liability - stopgap on Washington Operations.

The Port of Skamania County shall be named as an additional insured on all comprehensive liability policies required under this contract.

  1. PAYMENT- The Port will make payment based on the written request for payment by the Contractor and when approved in writing by the designated port manager of the contract. Approved Payment Requests will be paid within thirty (30) days of Port approval. Requests for payment shall include detail billing including specific line items, work completed, hours worked, current total percent complete, and current percent being billed. Refer to further requirements in the Contract Agreement as to payments and retainage.
  1. EQUAL OPPORTUNITY EMPLOYER - The Contractor shall maintain policies of employment as follows: The Contractor and all sub-Contractors shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, marital status, creed, or national origin and the presence of any sensory, mental or physical handicap, and to authorize selections or decisions to be made upon such classification. The Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, age, 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.
  1. INDEMNIFICATION – Contractor agrees to hold Port harmless, indemnify and defend Port against any and all claims of third parties arising out of Contractor’s performance under this Agreement, provided however, that the Contractor shall not be required to so indemnify the Port against liability for damages caused by or resulting from the sole negligence of the Port, its agents or employees; and provided further that if such damages are caused by or result from the concurrent negligence of the Port or its agents or employees and of the Contractor’s or its agents, consultants or employees, then the Contractor's indemnity shall be limited to the extent of the negligence by the Contractor or its agents, consultants or employees. Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless the Port its officials, agents or employees.
  1. INDEPENDENT CAPACITY OF THE CONTRACTOR-- The parties intend that an independent supplier relationship will be created by this contract. The Contractor and his or her employees or agents performing under this contract are not employees or agents of the Port. The Contractor will not hold himself/herself out as or claim to be an officer or employee of the Port by reason hereof, nor will the Contractor make any claim of right, privilege or benefit which would accrue to such employee under law. Conduct and control of the work will be solely with the Contractor.
  1. CANCELLATION OF CONTRACT - Cancellation may be made upon thirty days (30) written notice, by either party.
  1. EXTENSION OF TIME - The Port reserves the right to extend the contract resulting from this bid and shall communicate to the holder of the contract its intentions to do so prior to contract expiration.
  1. INSPECTION - The Port reserves the right to inspect all materials and workmanship and shall have the right to reject all materials and workmanship at the time of delivery or inspection of the delivery.
  1. WORK PERFORMANCE - Contractor shall ensure all work performed shall be under the continuous supervision of a Supervisor skilled and experienced in the tasks being performed. The Contractor shall at all times enforce strict discipline and good order among all workers on the work projects, and shall not employ in the work or the work site any unfit person or anyone not skilled in the task assigned to him/her. Incompetent, careless, or negligent workers shall be immediately removed from the performance of the work and the work Site. Contractor shall be responsible for the acts and omissions of all its employees, agents, and Subcontractors and their agents and employees, and all other persons performing any work under the Contract. Qualification of Workers: Provide only workmen that are experienced in this type of work and have a good knowledge of the methods, tools and equipment required for the successful prosecution of this type of work. Work in hazardous material areas or in confined spaces with hazardous conditions, hazardous material abatement, asbestos abatement and/or work requiring the handling of hazardous materials shall be performed only by workers with appropriate training and current applicable certification.
  1. PERSONNEL TRAINING and SAFETY - Contractor shall provide proper training, protective clothing, and equipment for safe work and safe job site performance. Work shall be performed in accordance with US Department of Labor (OSHA) and all other applicable laws, ordinances, rules and regulations. Work shall be performed using good work practices and shall comply with all applicable laws, ordinances, rules, regulations, and orders of any public authority having jurisdiction for the safety of persons or property or to protect them from damage, injury, or loss. These requirements shall apply continuously and not be limited to normal working hours.

The contractor shall develop and maintain for the duration of the contract a safety program that will effectively incorporate and implement all required safety provision for the project and job site(s). The contractor shall appoint an employee who is qualified and authorized, and who shall supervise and enforce compliance with the safety program and requirements above.