000010B Supplemental Conditions.docx

WASHINGTON STATE PARKS AND RECREATION COMMISSION

SUPPLEMENTAL CONDITIONS

MARINE VESSEL PUBLIC WORKS

1. ADDITIONAL DEFINITIONS, ABBREVIATIONS AND INTERPRETATION OF TERMS

The following definitions, abbreviations and interpretations of terms are meant to assist the establishment of a common meaning and understanding of this Contract. The definitions in this Article are not intended to be all inclusive and terms may be defined in other provisions of the Contract Documents. In the event of any instance where there is an irreconcilable inconsistency between the definitions and abbreviations set forth in this Article and the use of said terms elsewhere in the Contract Documents, then in that instance, but only in that instance, the use of such definition, abbreviation or interpretation of terms elsewhere in the Contract Documents shall govern.

1.1. Definitions

Shipyard shall mean the location(s) where the Vessel construction or manufacturing portion of the Contract Work is to be performed or such other location(s) as State Parks may approve in writing.

State shall mean the Washington State Parks and Recreation Commission (the Agency), and its duly authorized representative(s), as designated.

Substantial Completion Date is the day the Agency Representative determines that the Agency has full and unrestricted use and benefit of the Vessel, from both the operational and safety standpoints, with only minor incidental work or correction or repair remaining for completion of the Contract Work for the Vessel.

Subcontractor shall mean any entity with whom the Contractor has entered into any Subcontract and any other entity with whom any Subcontractor has further subcontracted any part of the Work, at any tier. Suppliers and materialmen are excluded from the term. The members of a joint venture Contractor shall not be considered Subcontractors under this Contract.

Surety shall mean any surety or bond company that is responsible for any portion of the Contract Security; or whose assets may be, in any way, bound to ensure performance of the Contract requirements, payment of all obligations pertaining to the Contract Work, and fulfillment of such other conditions as are specified in the Contract, or as otherwise required by law.

Vessel or Ship are interchangeable throughout the Contract Documents. Generally, the word "Vessel" means the Vessel subject to the Contract Work under this Contract whether stated in the singular or plural.

Agency or Owner shall mean Washington State Parks and Recreation Commission, acting by and through its authorized representative.

1.2. Abbreviations

1.2.1. The following abbreviations shall have the meanings set forth next to them when used in the Contract Documents:

1.3. Interpretation of Terms

1.3.1. Approved Marine Construction and Repair Practices - The term "approved marine construction and repair practices" refers to the Contract Work on the Vessel consistent with those soundly conceived and engineered details, plans, and practices which have proven to be effective and reliable in the maritime industry for seaworthy vessels, which will meet the details and performance requirements of the Contract Documents and which are required to obtain and/or maintain approval or certification of all Authoritative Agencies. However, approval by any Authoritative Agency does not imply acceptance by the Agency, nor does it necessarily mean "approved marine construction and repair practices."

1.3.2. Approval - Unless the context is expressly to the contrary, any reference in the Contract Documents to "approved" or "approval" shall mean "approved by the Agency" or "approval by the Agency". The Agency approval does not: (i) relieve the Contractor of securing approval of the Authoritative or Regulatory Agencies as required by law; (ii) relieve the Contractor of the obligation to meet the requirements of the Contract Documents; or (iii) constitute a modification of the requirements of the Contract Documents.

1.3.3. Capitalized Terms - Terms used during the performance of the Contract Work shall have the meaning assigned to them in the Contract Documents as the context may require, whether or not capitalized or identified as a defined term.

1.3.4. Compliance With, According To - Terms such as "compliance with" or "according to" the Contract Documents shall mean compliance with or according to all of the Contract Documents subject to the "Coordination of Contract Documents" Article and subject to any variation from certain of the Drawings as is permitted by the terms of the Contract Documents.

1.3.7. Furnish - When the Contract Documents state that the Contractor is required to furnish an item, the Contractor shall be responsible for manufacturing, purchasing, or otherwise procuring and providing such item including all spare parts and documentation, and deliver such item on board the Vessel prior to Delivery, handling and stowing as directed by the Agency, or installing as required by the Contract. This definition does not apply to items furnished under the term "Owner-Furnished Equipment" Article.

1.3.8. Install - When the Contract Documents state that the Contractor is to install an item, the Contractor shall be responsible for supplying all labor, tools, equipment, and material necessary to perform such installation in accordance with manufacturer's instructions and as required by the Contract Documents. For all installations, including OFE, if any, the Contractor shall supply all electrical power, water service, lubrication, lighting, ventilation and other facilities or means required for the complete, in ready to operate condition, installation, and shall deliver to the Agency complete and operable machinery, equipment, or systems.

1.3.9. Or Equal - An "or equal" product is one which exhibits, among other things, both a size and weight of substantial similarity to the listed item as to ensure that no adjustment to the equipment arrangement would be required to accommodate the products inclusion as a substitute into the Vessel, and which has equivalent characteristics, performance, reliability, maintainability and other salient features as the product identified in the Contract Documents, and which fulfills the requirements thereof.

The total performance of the "or equal" product will be such that its use will not adversely affect the intended performance or systems of the Vessel and will cause no increase in required maintenance or accelerate the need for premature replacement. The specific requirements for obtaining an “Or Equal” approval from the Agency are set forth in the Instructions to Bidders.

Demonstration of an "or equal" status is the sole responsibility of the Contractor. All "or equal" substitutions require written approval by the Agency’s Project Engineer. The approval of an "or equal" product by the Agency does not relieve the Contractor of resolving any problems or interference which result from differences between the specified product and the "or equal" product.

1.3.10. Provide - When the Contract Documents state that the Contractor is to provide an item, the Contractor shall furnish and install the item, making such connections as necessary to make the item fully operational, i.e., provide engineering, labor, tools, equipment, furnish such items as foundations, brackets, braces, electric wiring, piping connections, etc., as necessary.

2. SPECIFICATIONS, DRAWINGS AND OTHER REQUIREMENTS

2.1.3 Any oversight, misunderstanding or ignorance of the Regulations shall not relieve the Contractor of its obligations and shall not justify additional compensation or extension of the Contract Time.

2.1.4 The Contractor shall obtain all required permits and licenses of any kind, including environmental licensing and compliance, and give or post any required notices. Before start of work, the Contractor shall provide the Agency with copies of all required Contractor permits and licenses to operate.

2.1.5 Where the Specifications require that any aspect of the Contract Work conform to certain standards such as the MARAD, USCG, ABS, ASTM, AISI, SAE, IEEE, ISO, applicable Classification Society or other recognized agency, institution or body, the applicable portions of those standards shall be deemed incorporated in the Contract Documents to the extent that it is so referenced, with the same order of precedence as the highest-level Contract Document in which the reference occurs. The requirement shall be clearly indicated on any purchase specification, order or other relevant documents developed and issued by or for the Contractor.

2.1.6 Unless the Agency states otherwise in writing, all items, materials and work requiring USCG approval shall be provided or made available by the Contractor to the appropriate USCG Inspection Office in a timely manner to enable the USCG to conduct its review and issue its directive for changes or its approvals so as not to delay the Contract Work on the Vessel and Delivery. Failure of any Contractor drawings to pass USCG review is the sole responsibility of the Contractor regardless of Agency approval of associated work.

2.1.7 Unless the Agency states otherwise in writing, all items, materials and work requiring ABS approval shall be provided or made available by the Contractor to the ABS in a timely manner and in accordance with the ABS rules. Compliance will allow the ABS to conduct its review and issue its approval or directive for change.

2.1.8 Interpretation or representation by the Agency of any laws, regulations or ordinances as set forth in the Contract Documents or otherwise, takes no precedence over the law, regulation or ordinance itself and the Contractor shall satisfy itself as to the true construction and content of such laws, regulations and ordinances on a current basis.

2.1.9 All fees and charges of the Authoritative Agencies associated with their duties as contemplated by the Contract Documents shall be for the account of the Contractor.

2.2 Where requirements of the Contract Documents exceed the requirements of any Authoritative Agency or approved marine construction and repair practices, the Contract Documents shall prevail.

2.3. The extent of Contract Work on the Vessel is described in the Contract Documents. Additional work undertaken by the Contractor, which has not been specifically authorized by the Contract Documents, or authorized by Change Order, shall be at the Contractor's sole risk and expense.

2.4. All materials, machinery, equipment, and components furnished by the Contractor shall be new, currently in production, and currently supported by spare parts readily available in the United States of America. All materials, machinery, equipment, and components shall be of good commercial marine quality, in full compliance with the Contract Documents, the requirements of the Authoritative Agencies, and suitable for the service intended. All equipment, materials, or components used or installed in the Vessel shall be free from defects and imperfections of manufacture which adversely affect appearance or serviceability.

2.5. It is not practicable for the Contract Documents to enumerate all of the details, fittings or appurtenances required to perform the work as described in the IFB. Failure of the Contract Documents as existing on the date hereof to outline or describe all of the details of the work described in the IFB or contemplated therein shall not relieve the Contractor of its responsibility to perform such work for the Contract Price.

3.2. There are no intentional conflicts or omissions in the Contract Documents. In the event of any such conflicts or omissions, the order of precedence shall be as noted in the Contract Form.

4.2. Except as specifically allowed in Article 5.3, the Contractor shall not be entitled to any adjustment in the Contract Price solely due to: (i) inflation or escalation in the cost of labor, materials, equipment or services occurring during the performance of the Contract Work; and/or (ii) any changes in foreign currency exchange rates.

Within thirty (30) days of the conclusion of each respective Adjustment Period, the Contractor shall submit to the Agency a full accounting of the total costs incurred by the Contractor for any allowable Indexed Materials during the Adjustment Period for which the Contractor seeks an adjustment pursuant to this Article. The Contractor shall also provide such accounting for any Adjustment Period as requested by the Agency. Failure to submit such accounting shall be deemed a waiver of the Contractor’s right to seek compensation pursuant to this Article for that respective Adjustment Period. Failure to seek an adjustment for any specific Adjustment Period will not affect either Contractor’s or the Agency’s ability to seek an adjustment for later Adjustment Periods.

The accounting shall contain certified invoices listed in chronological order and contain a tabulation of quantity, the order date, the date shipped from the manufacturer/supplier, and the price per unit weight(reflecting all deductions for quantity shipments). These invoices shall be subject to audit verification. Any adjustment will be calculated pursuant to the adjustment formula contained in Section 5.3 below.

2) Any adjustment pursuant to this Article shall be supported by an increase or decrease in U.S. Department of Labor - Bureau of Labor Statistics (BLS) index entitled "Producers Price Index" (PPI). The values contained in the PPI are subject to revision four (4) months after original publication. The price adjustment for steel based allowable materials shall be a function of the percentage of change of the price index for the commodity item “WPU101”. Seasonally adjusted indices shall not be used.

These indices are available on the internet at the U. S. Bureau of Labor Statistics Producer Price Indexes Home Page https://www.bls.gov/ppi/. Once on the PPI home page, look under the heading "GET DETAILED PPI STATISTICS", and then under "Create Customized Tables" select "Commodity Data" and follow the directions to retrieve the data for either of the designated commodity items producer price indices.

3) No markups of any kind shall be applied to adjustments made pursuant to this Article. The amount of adjustment resulting from this Article represents the MAXIMUM adjustment payable regardless of the difference between the cost incurred by the Contractor for Indexed Materials and the cost of said Indexed Materials contained in the Contractor’s initial Contract Price at the time of the Notice to Proceed.

4) The Agency will review the PPI four (4) months after initial publication to ensure that the data has not been revised. If the index used for the value of “Ia” in Article 5.3.C.5 is revised by the BLS, any resulting adjustment (increase or decrease) that may result from this revision will be accounted for in the next Adjustment Period.

5) Adjustment Formulas: Subject to the conditions noted above, cost adjustments made pursuant to this Article shall be calculated solely based on the formula below.

Adjustment Period: A period starting on the date of the Notice to Proceed running through the end of the third month after the month of the Notice to Proceed and ending every three (3) months thereafter until Delivery of the Vessel.

Example application of formula:

Thus, the Agency would give a lump sum adjustment of $ to the Contractor for steel based allowable materials purchased for the three-month period January 2009 through March 2009.

6) The value of "CM" indicated above shall not be corrected to remove or adjust the costs of materials purchased in connection with Changes, unless the net value of the materials associated with a specific Change, added or deleted from the scope of work, exceeds $25,000. If materials valued greater than $25,000 are added or removed by a Change, then the value of "CM" used in the calculation of the Adjustment shall be revised accordingly.

4.4. The Contractor shall be entitled to an equitable adjustment in the Contract Price and/or the Contract Time because of changes in laws, ordinances or regulations, as provided by the following instances. The adjustment for increase in Contract Price, if due, shall be subject to the limitations provided in the "Contract Changes" Article. The adjustment for extension of Contract Time will be evaluated in accordance with the "Extension of Time" Article.

A. Changes in laws, ordinances or regulations within the scope of RCW 39.04.120;

B. Changes in taxes on materials incorporated in or consumed for performance of the Contract Work which are imposed by Federal or State Government, or changes in the State Sales Tax, provided that the aggregate amount of all such changes is greater than $100.00 where:

C. Changes in laws, ordinances or regulations, or adoption of any new laws, ordinances or regulations, which are materially inconsistent with the laws, ordinances or regulations in effect at the time of the Bid Due Date (excluding any such change or new laws, ordinances or regulations which were passed or adopted but not yet effective as of the date of the Bid Due Date), and which requires a material modification in the Contract Work. The Agency shall be entitled to a decrease in the Contract Price for any change in laws, ordinances, or regulations that reduces the cost of the Contract Work, if and to the extent that the change allows a material modification in the design of the Project resulting in a net cost savings. Notwithstanding the above, the Contractor shall be entitled to Change Orders adjusting the Contract Price and/or Contract Time under this Article 4.4.C only for cost increases resulting from the aforementioned changes, which in the aggregate exceeds $50,000 in costs. In addition, this provision shall not apply to changes in prevailing wage rates and such changes shall not entitle Contractor to an adjustment in the Contract Price.

D. Adjustments will be made by negotiated Change Order for any changes pursuant to this Article. Compensation will be increased or decreased for the actual dollar amount of changes in Federal or State taxes meeting the requirements of this Article; Provided that the Contractor, if requested by the Agency, certify in writing that no amount for any such change in taxes was included in the Bid Price as a contingency reserve or otherwise; and Provided further that the Contractor allow the Agency to audit its records to the extent necessary to substantiate any claim for compensation under the provisions of this Article.

5. DANGEROUS MATERIALS

5.1. None of the following shall be installed on or applied to the Vessel: asbestos containing materials (ACM’s); lead containing paints (LCP’s); and materials or components containing polychlorinated biphenyls (PCB’s). All non-ACM substitutes must meet current criteria for safety and fire protection.

5.2. Upon request, the Contractor shall provide information and documentation pertaining to the use, removal or disposal of ACM, LCP, PCB's or other toxic or hazardous waste. If, at any time during the Contract Work, the Contractor fails to provide the requested information or documentation, or submits erroneous information or documentation, it shall be cause for the Agency to suspend all work until such time as the deficiencies have been rectified at the Contractor’s expense.

5.3. Whether or not any toxic or hazardous materials (including, but not limited to, ACM, LCP and PCB's) are identified in the Contract Documents, Drawings or otherwise, the Contractor shall be solely responsible for properly transporting, handling, and disposing of hazardous materials and for complying with, and enforcing, all Regulations pertaining to the removal of ACM, LCP, PCB's, other toxic or hazardous materials, and other waste material and debris whenever and wherever encountered in the performance of the Contract Work. Such responsibility includes strict compliance with WAC Chapter 173-303 (Dangerous Waste Regulations) and any applicable local Regulations. Any such regulatory compliance work, including that which may arise during performance of Change Order Work, is part of the Contract Work and is covered by the Contract Price. The Contractor shall protect and indemnify the Agency from any and all damages associated with or arising therefrom.

5.4. The terms “hazardous materials” or “hazardous substances”, as used herein, means any hazardous, toxic, radioactive, or infectious substance, material or waste as defined, listed or regulated under any federal, state or local law, statute, regulation, code, rule, ordinance, order, judgment, decree, injunction, or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, the Hazardous Waste Management Act, RCW Ch. 70.105, the Model Toxic Control Act, RCW Ch. 70.105D, and any similar or comparable federal, state, or local law. The terms “hazardous materials” or “hazardous substances” also include, without limitation, petroleum oil and any of its fractions.

6. CONTRACT CHANGES

6.1 Other Changes to the Contract

A. Basic wages and fringe benefits. The hourly wage (without markup and fringe benefits) paid by the Contractor 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 change in the Work on the site. The premium portion of the overtime wages is not included, unless pre-approved in writing by the Agency. Costs paid or incurred by the Contractor for vacations, per diem, travel, bonuses, stock options, or discretionary payments to the employees shall not be allowed.

B. Workers’ insurance. Direct contributions to the State of Washington as industrial insurance; medical aid; and supplemental pension by class and rates established by the Washington Department of Labor and Industries.

C. Federal insurance. Direct contribution required by the Federal Insurance Compensation Act (FICA); Federal Unemployment Tax Act (FUTA); and State Unemployment Compensation Act (SUCA).

D. Costs incurred for supervision, above the foreman level, or first level of supervision, shall not be considered a Direct Labor Cost. All such supervision costs shall be deemed included in the allowed “Fee” under Section 7.02.7 of the Agency’s General Conditions for construction at Washington State Parks.

6.2. Vessel Berthing or Drydock Costs. In the event (i) the Contractor is entitled to an adjustment in Contract Time pursuant to Section 7.03 of the General Conditions and compensation for such time extension or delay is otherwise allowed under Section 7.03 of the General Conditions or the Contract Documents; or (ii) additional vessel berthing or drydock days are necessary due solely to events or causes for which the Agency is responsible in circumstances that do not result in an adjustment in Contract Time, the Contractor shall be allowed its customary charges for vessel berthing or drydock services, and its customary charges for temporary vessel services, calculated where applicable on a daily basis, multiplied by the allowed number of days of adjustment in Contract Time or the number of additional berthing or drydock days pursuant to (ii) above, as applicable. In the event the parties are unable to agree on such costs they shall be determined by the Agency based upon an audit. The Contractor acknowledges and agrees that the charges allowed under this Article shall fully and completely compensate the Contractor for any and all costs associated with additional docking or berthing days or services, of any form or nature.

7. DELIVERY

7.1. TIME IS OF THE ESSENCE IN THIS CONTRACT. The Contractor shall provide the attention and labor force necessary to facilitate progress and completion of the Contract Work so that Vessel Delivery to the Agency shall occur at the permanent moorage slip for the vessel during a date and time window as mutually agreed on by both the Contractor and the Agency.

7.2. To ensure that the Vessel is in proper condition for Delivery, the Agency, the Contractor, and the Naval Architect will complete a joint acceptance survey of the Vessel prior to the scheduled Delivery. The survey shall include a review of the status of acceptance survey deficiencies and items developed thereto. It must be recognized that under the Contract Documents, the Contractor is required to Deliver a Vessel free of all known defects and deficiencies. The Contractor must agree to the earliest practical accomplishment of any remaining acceptance deficiencies without interference with the Agency’s scheduled use of the Vessel.