HomeMy WebLinkAboutITEM VIII-B-2
* *
CITY OF *
AGENDA BILL APPROVAL FORM
WASHINGTON
Agenda.Subject: Resolution No. 4618 Date: June 30, 2010
Department: Attachments; Budget Impact:
Human Resources Resolution No. 4618
Administrative Recommendation:
City Council adopt Resolution No. 4618.
Background Summary:
Resolution No. 4618 authorizes the City to enter into a cooperative purchasing agreement with the City of
Seattle for the purpose of utilizing the City of Seattle's contract with McKinsfry to obtain energy
conservation services.
S0719-1
A3.16.6
- Reviewed by Council8 Committees: Reviewed by. Departments & Divisions:
E] Arts Commission COUNCIL COMMITTEES: ❑ Building 0 M&O
0 Airport 0 Finance ❑ Cemetery ❑ Mayor
❑ Hearing Examiner 0 Municipal Serv. ❑ Financ$ ❑ Parks
❑ HumanServices ❑ Rlanning & CD ❑ Fire ❑ Planning
❑ Parlc Board p Public Works ❑ Legal ❑ Police
❑ Planning Comm. ❑ Other O Public"Works ❑ Human Resources
❑ Information Services
Action: -
Committee Approval: ❑Yes 0No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to UMiI
Tabled Until
Councilmember: Backus Staff: Heineman
Meetin Date: Jul 19, 2010 Item Number: VIII.B.2
AUBURN * MORE. THAN YOU 1MAGINED
RESOLUTION NO. 4 6 1 8
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR TO EXECUTE A COOPERATIVE
PURCHASING AGRE- E- MENT WITH THE CITY OF
SEATTLE FOR THE PURPOSE OF ENTERING
INTO AN ENERGY SERVICES CONTRACT
WHEREAS, The City of Auburn intends to implement energy conservation
measures in City facilities and vehicles; and
WHEREAS, the City of Seattle has an existing contract with McKinstry
Essention, Inc. to perform facilities assessment, prepare a conservation services
proposal, and installation services; and .
WHEREAS, City staff have reviewed the Seattle contract and determined
that it meets the needs of the City in this area; and
WHEREAS, because of the specialized nature of this work, and because
of McKinstry's familiarity with the City of Auburn's facilities, staff recommends
entering into a cooperative purchase agreement in order to take advantage of the
favorable terms of the Seattle/McKinstry agreement;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
HEREBY RESOLVES as follows:
Section 1. Thaf the Mayor is hereby authorized to execute a
Cooperative Purchasing Agreement with the City of Seattle in substantial
conformity with the agreement attached herefo as Exhibit A and incorporated
herein, for the purpose of utilizing the City of Seattle's contract with McKinstry to
obtain energy conservation services.
Resolution No. 4618
June 29, 2010
Page 1 of 2
Section 2. That the Mayor is authorized to implement such
administrative procedures as may be necessary to carry out the directives of this
legislation.
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
Dated and Signed this day of , 2010.
CITY OF AUBURN
PETER B. LEVNIS
MAYOR
ATTEST:
Danielle E. Daskam, City Cierk ,
APPROVED AS TO FORM: "
D nie . Heid, City Attorn
Resolution No. 4618
June 29, 2010 . .
Page 2 of 2
COOPERATIVE PURCHASING AGREEMENT
In accordance with RCW Chapfer 39.34 and to ail other applicable laws, The City of
Seattle and the of , hereby agree to
cooperative govemmental pui-chasing agreement for various supplies, materials,
equ,ipment and routine, expert and/or consultant services, using competftively awarded
contracts. The following terms and condfions: 1. Each agency, in contracting for the purchase of supplies, materials, equipment and
. services, agrees at its discretion, to extend contracts for shared use to the extent
permitted by Iaw and agreed upon by those parties and vendors.
2. Each agency is responsibie for compliance with any additiona[ or varying Iaws and
regulations regatding purchases.
3. Any purchases shall be effected by a purchase order from the purchasing agency
and directed to the vendor(s}.
4. The originating contracting agency does not accept responsibility or liability for the
performance of any vendor used by the purchasing agency as a result of this
agreement.
5. Each agency shall be responsibfe for the payment of any item(s) purchased through
a contract or purchase order that resulted firom this Agreement. .
6. This Agreement, shafl remain in force until cancelled in writing by either party.
Accepted for Accepted for the City of Seattle:
By: gy;
Name: Name: Nancy Locke
Title: Title: City Purchasing Director
Date: Date:
Vendor Contract #0000001961
Attachment #1
City of Seattle
ESCO SERVICES
This Contract is~made effective 12/10/06 (the "Effecfive Date"), and entered'into by and befinreen the City •
of Seattle (refeRed to as "Seaffle° and "the City" herein), a Washington municipal corporation; and McKinstry Essention, Inc. (°Contractor°), a corporation of the State of Washington, and authorized to
do business in the State of Washington.
Contractor McKins Essention; Inc.
Re resentatiVe Mark Jonson -
Address P.O. Box,24567, Seattle WA 98124
Phone 206-832-8450
Fax 206-762-2624
. E-mail iriark' mckinst ' .com NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performance of the scope
of work cantained herein, as attached and made a part hereof, Seattle and Contractor mutually agree as
follows:
1. Entire Aareement: This.Contract, including all attachments, amendments, subsequently issued
Cqntractoe Proposals and Work Orders (defined in Section 4), and subsequently issued written change
notices, comprises the entire agreement between Seattle and the Contractoc: The Requesf for ,
Proposal ("RFP"), Addenda, and Contractor's Proposal are explicitly inGuded as Attachments. Where
there are conflicts between these documents, the order of priorityfor controlling documents wilf be as
follows: this Contract as amended, written Work Orders from the Gity of Seattle, Contractor proposals
for specific energy savings installations, the City of Seattle RFP #1791 and Addenda and then the
Gontractor's proposal in responseto the RFP.
2. Contract Period: This contract shall be for a five- year period with option to extend for one additionaf
5-year period unless terminated earlier pursuant to the provisions hereof. Such extension shall be
automatic, and shall go into effect with or without written confirmation from the City to the Contractor,
unless the City provides the ConVactor advance notice of the intention to not renew. Such notice shall
be given in writing no later than January 10, 2012. Any project not completed at the conclusion of the
contract period shall continue under the terms of the contract until completed.
3. Time of Bectinnina and Completion: Contractor shall begin, the work stated in the "Scope of Work"
("Work°) section upon receipt of signed Vendor Contract from Seattle. Time limits established
pursuant to this Contract shall `not be extended because of delays for which Contractor is responsible,
but may be extended by Seattle, in writing, for its convenience or for conditions beyond Contractor's
control.
. . ,
4. Scope of Work: The Contractor shall provide the following services and tasks specified below and
listed in McKinstry Essention Proposal under "Range of Seniices", Page 38. See Attachment #2.
These senrices shall be termed "Work° herein.
A. Preliminary Facility Assessment
1. During the course of the Gontract, the City, including any individual City Department, may
id'entify city facilities that may benefit from conservation improvement measures. The City
authorized representative(s) for.such City fac"ilities may assign the Contractor to perform a
1 of 24 McKinstry Essention Inc. ESCO Contract
Vendor Contract #0000001961 Attachment #1
Preliminary Facility Assessment on such facilities. This assignment shall be in writing. Within
thirty days of any such assignment,'the City will provide Contractorthe following for each of the facilities so named: -
a. Access to the facility for Contractor's staff; .
b. The facility's energy; water'and sewer bills for the finro-year period
immediately preceding the execution ofifhe Water and Energy Seivices
- Agreement; . -
c. Data on the facility's variables, such as usage schedules and.leyels of ,
occupancy (rate), which may affect the facilify's utility bills; ,
d. Any resource audits that have been conducted within the last five years;
e. The existence of any Known hazardous materials in the facilitythat may
' affect the cost of installing Conservation Measures;
f. A description of the facility management practices presently in use at the
facility; and,
g. A description of future plans for the facility including planned remodels,
additions, demolition and other major facility changes. 2. At no cost to the City, the Contractorwill prepare a Preliminary Facility Assessment for each
facility assignedttiat outlines the scope, schedule and maximum compensation to be paid by
the City to Contr.acfor for conducting a Conservation Services Project Proposal, Contractor .
agrees that all Preliminary Facility Assessments will be completed wifhin 120 days of the City
proyiding fhe information described in Section A. 1, (above).
3. The Preliminary Facil'ity Assessment will detail a proposed scope, schedule and maximum -
.
price to be paid by the City,for Contractor to perform the work to prepare a Cgn"servafion .
Services Project Proposal. Once Contractor and the City agree on the scope, schedule and
maximum price for Contractor to prepare the ConservaUon Services Proposal, the Gity
(through it's authorized representative) will issue a Work Order:
B. Directed Engineering Study to Prepare a Conservation Services Project Proposal
1. When autliorized in writing by Work Order to the Contract, the Contractor will prepare a
Conservation Services Projecf Proposal for each Facility that may include the following:
a. A description of the Facility and adescription of those buildings and systems
which are proposed to receive ESCO equipment and serVices.
b. The Cost-Effective Conservation Measures recommended to be installed by the
Contracfor and a description of the Conservation Measures not recommendecJ by
the Contractor because they are not Cost-Effective. The Cost.-Effective
Conservation Measures will be rank ordered according, to their benefit cost ratia
i. For the purposes of.calculating Cost Effectiveness, utility rebates shall
first be subtracted from Total Project costs;
ii. Labor and/or maintenance cost savings may be included in Resource
Cost Savings for the purpose of determining .Cost Effectiveness, unless _
; otherwise agreed to between the City and the Contractor.
iii. For Facility projects involving equipment with different anticipated life-
cycles, a project anticipated life-cycle period will be agreed to bythe City
and the Contractor for purposes of the savings calculation. The project
anticipated life-cycle period shall be based on the life-cycles.of the
equipmentcomponents of the project and their respective percentages of
the Total Project Cost.
2 of 24 McKlnstry Essention Inc. ESCO Contract"
Vendor Contract #0000001961
Attachment #1 '
c. The 'services that the Contractor will perform or cause to be perFormed on or in
the Facility, including but not limited to engineering, construction management,
subcontracting for installafion, the operations and maintenance procedures for
use on ESCO equipment, training for Facility personnel, providing 2-year warranty
service, and equipment maintenance (costs proposed for equipment
. maintenance shall6e separately identified);
d. The'Maximum Allowable.Project Cost, itemized in detail, which may be amended
° to represent,addifional Citycostis and/or actual costs; e. Recommendationsfor:replacing Existing Equipment;.along with
recommendations for improvements to, Existing Equipment and Operating
Conditions:
f. The standards of comfort and service appropriate for the Facility;
g. The Baseline Consumption for the Facility,; including the data, methodology and
variables used to compute the Baselme; and #he Baseline calendar period which
shall not be less4han twelve (12) months;
h. The estimated Resource Cost Savings that are expected to result from the
installation of ESCO eguipment and service, and :an explanation of the method `
used to make the estimate;
i. The method by which Resource SaVings and Cost Savings will be calculated
during the term of the Energy Sadings PerFormance Contracting agreement.
j. A description of the methods to 6e used for measurement and verification (M8V)
of Resource Cost Savings, and the period duration for M&V included in the Total
Project Gost. . M&V shall continue for at least one year after Substantial
Completion. ~ -
k. A descripfion of how the Resource Savings will be guaranteed by the Contractor
and the term ,of the guarantee;
1. The schedule #or Project completion;
m. The recommended Funding Sources for each Conservation Measure. The costs
for preparing the Conservation Project Proposal will be prorated among the Cost
Effective Conservation Measures;
n. Audit Documentation;
o. Subcontracting Plan: Identify the work that needs to be conducted to install the
conservation measures, and specify, all the work that will be perFormed by
subcontract. 'The Contractor will propose'the subcontractors that the Contractor
intends to use for such installation work. TFie Contractor will conduct outreach
and recruitment for women and minority suticontractors and that the proposed
installation and subcontracting plan will include such firms at a level.that reflects
responsible efforts. .
p. The City will review the proposed installation and subcontractor plan, and will
approve the proposed subcontracting plan or will provide additional resources for
recruitment and outreach and require the Contractorto revise the plan to provide
a plan that'better reflects #he responsibility foc outreach and recruitment of
qualified subcontracfors. i. For each Project under this Contract that has been approved by Work
Order, the; Contractor shall provide a monthly report to the Purchasing &
Contracting Services Division (Attention: Rodney Baladad) and to the
. City's aufh_orized representative. The monthly report shall provide an
; 3 of 24 McKinstry Essention dnc. ESCO Contract
Vendor Contract #0000001961
Attachment #1
. update as to all subcontracting activity, identify the Women o.r Minority
Owned Business (WMBE) stafus of such subcontractors, tofal dollars
paid to-date,.total dollars paid to WMBE's to-date, and the monthly
activ"ity of same.
ii: The City'reserves the right to require that the Contractor have
subcontractors submit subcontractor invoices directly to the City for payment of the subcontractor work or products.
2. Following the submission of the Conservation Services Project Proposal, the City and
the Contracforshall meet to review such proposal.
a. In. the event that the City and the Contractor cannot agree on the Consumption
Baseline for the Facility, this Agreement shall terminate for that Facil'ity only and
the City will compensate the Contractor one-half the cost of the Gonservation
Services Project Proposal forthat Facility, as identified in the Work Order. Such,
payment sh'all entitle the City to sole ownership of the Conservation Senrices _
Project Proposal.
b. In the event that the Conservation Services Project Proposal does not include
Cost Effective Conservation Measures which, when installed, will provide
standards of comfort and service accepfable to the City; this Agreement shall terminate forthat Facility only and there will be no compensation for the
Conservation Services Project ProposaL
c. If the City, requests changes to the Conservation Services Project Proposal, the
Partiesshall in good faith negotiate the requested changes and shall modify the
Conservation Services Project Rroposal accordingly. If the Parties cannot agree
on a modified Conservation Services Project Proposal within one hundred twenty - (120) days after the Citys receipt of the Conservation Services Project Proposal shall be deemed terminated for that Facility only, and the City shaU pay to the
'Contractor not more than the amount specified in the Work Order to this
Agreement as compensation for the preparation of the Conservation Services
Project Proposal. Such payment shall entitle fhe City to sole owne[ship of the
Conservation Services Project_Proposal.
d. All subcontractors proposed by the Contractor shall be approved by the City in
writing.
3. Agreement on the content, cost effectiveness, schedule, subcontractors, WMBE
compliance and form of the Conservation Services Project Proposal will be evidenced
by the City (through it's authorized representative) issuing a Work Order for the _
Contractor to install the Conservation Measures docum'ented in the Conservation
Services Project ProposaL
C: Installation of Conseroation Measures
1. The City shall issue a Work Order to the Contractor to install the Conservation Measures,
once the City and the Contractor have reached agreemenf. No work shall be performed
until fhe City has executed and issued the written Work Orderto the Contractor.
2. Within the period provided for completion and within the Maximum Allowable Project Cost
as setforth in the Conservation Services Project Proposal, the Contractor shall: -
a. Implement the ESCO Services, and
b. Install ESCO equipment.
3. fn the event that during installation of Conservation Measures, the Contractor or its
subcontractors encounters hazardous materials not previously identified, the Contractor
shall incur no further costs and shall contact the City's authorized representative. The City
4 of 24 McKinstry Essention Inc. ESCO Contract
Vendor Contract #0000001961
AttachmenY#1 .
will determine whether or not the cost of handling the hazardous material is an acceptable
cost to the Project.
a. If it is, not an acceptable cost to the Project, the. Conservation Services Project
Proposal for that Facility wilF be renegotiated to deteRnine the cost and scope ofi
ESCO work necessa ry to ensure thaf the Facility's level of comfort, health and
. safety is restored and that all applicable local, state and federal regulations
" relating to hazardous materials are camplied°with. The Contractor will be
compensated;according to the amended !Proposal and for its costs incurred prio'r'
to encountering the hazardous materials: "
b. If it is an acceptable cost.to the Project; the Gonservation Services Project
Proposal for that Faality will be amended to reflect the changed project scope,
comPensation and 'schedule related to tlie proper handling of the hazardous
maferiaL
c. The Gity reserves the,right to self perForm this work or contract with a licensed 3rd
party whafever is in the Citys best.interesf 4. For Conservation Measures involving removal and installation of ballasts, non-leaking
ballasts containing PCBs shall be segregated from leaking ballasts and, packed, labeled
and transported bythe ConVac#or to Seattle CltyLighYs SoutF~ Senrice Center according
to all local, state and federal regulations. The City shall arrange for proper storage and
disposal of ballasts containing PCBs. Fluorescent lamps replaced in Facilities shall be
properly recycled.by the Contractor. .
5. Design review meetings befinreen the City, the Contractor and Facitity staff shall be held at
the design development and construction documents stages. The Contractor shall provide
two (2) complete sets of construcfion design documents for City review atthe design
development and construction documents sfages. Afourteen (14) calendar day review. .
period shall be allowed at-fhe design development and construction documents stages for
ESCO quality control and to receive City's comments. An additional seven (7) calendar
days (beyond the review period) shall be allowed for incorporation of City comments.
6. If, after the date that a Notice to Proceed is issued for a Conservation Services Project
Proposal, the Contractordesires to addto ESCO services or equipment a component that
is not identified in the initial Conservation Services Project Proposal, the Confractor shall
identify that component in a supplement to tFie Conservation Senrices Project Proposal,
which upon the written agreement by the Cityshall be added to the Conservation Services
Proposal.
7. The City will allow the Contractor to have reasonable access to the Facility in order to
provide ESCO Services, to review Citys operating methods and procedures, and to
monitor the ongoing duties and obligations of the City and the Contractor under the
Energy Performance Contracting,agreement. The Contractor is;aware that City Facilities
are used for public-business and/or for use by City employees: Scheduling of disruptive
work, i.e. noise, dust, Joss of required security or the. elimination of required ventilation for
outdoor air and comfort control mayrequire that ESCOworR be limited to certain time
periods of the day or the week. The Contractot shall inquire as to any limitations at each
Facility and take those limitafions into consideration in preparing the Consenration
Services Project Proposal for such Facilities. -
8. The City may require a baskground check by Washington State Patrol of all employees of
the Contractor and any subcontractors who will be wocking in City facilities.
D. Equipment Maintenance and Cify Training :
The Contractor shall provide the maintenance and training services set forth in the
Conservation Services Rroject Proposal:
-
5 ofi24 McKinstry Essention Inc. ESCO CoMract
Vendor Contract #0000001961 Attachment #1 E. Communication
It is the intent of the parties to hold periodic meetings between the Contractor and the City to
review progress under the Energy Savings Performance Contracting agreerrient any
amendments, to agree on any redirection, to coordinate any outside work with the schedule of
the Facility; and to generallymaintain quality control during the course of the work.
5: Utilization by'Work Order only. No Mandatorv or Guaranteed Utilization: The Contractor wilf.
not perform any woric unless authorized tiy"written notice to proceed or Work Order: The. City
~''does not guarantee utiliza#ion of this contract. Contract Period and Terms for Energy Saving Guarantees: The initiaf contract term wiU
include five years from the date of execution within which the City mayrequest the Contractor
initiate a Conservation Services Project. The contract will continue in force until all projecfs
infiated in this five-year period are completed and the warranty time period is concluded. The
contract may be exfended for additional five-years, during which time the Cityand the Contractor
mayinitiate new Conseryafion Service Projects. In the event the contracfiis renewed,`the contract
will continue in force until all projects initiated during the extended period are completed and the
warranty time period is concluded.
The Conservation Services Project does not require conservation guarantees thaf are fnef and ,
completed within the five year period. Project pay-back periods may be much longer or shorter
than the fve-year window for accepting project requests. The City does nof have any restriction
as to the. pay-back period that will be imposed by the contract, and those pay-back periods
proposed within each independent Conservation Work Plan that are accepted by the City and the
Contractor shall be acceptable. -
6. Prices: Pricing per Work Order shall be determined at the time the Conservation Services
Project Proposal is submitted to the City's authorized representative. Pricing shall be consistent
" with McKinstry Essention Proposal under "Fee Schedule" as listed on Page 56: See Attachment
#2.
7. Environmental Standards: The City seeks to ensure that all purchases comply with recent
environmental standards and product specifications. The USEPA Standards for this product shall
be a minimum specification, if any such standards have been published 6y the USEPA, unless
specified otherwise herein. See httq://www.eqa.gov/epaoswer/non-hw/arocurerndex.htm. City,
Local, State;.and Federal codes and standards are to be adtiered to, and the most stringent
requirements shall prevaiL
8. Permits: All necessary permits required to perform work are to be supplied by the Contractor at
no additional cost to the City.
9. Trial Period and Riqht to Award to Next Low Bidder: A ninety (90) day trial period shall apply
to the contract. During thetrial period, the Contractor must perform in accordance with all terms
and conditions of tfie contract. Failure to perform during this trial period may result in the
immediate cancellafion of the contract. In the event of dispute ordiscrepancy as to the
acceptability of product or service, the City's decision shall pcevail. The City agrees to pay only for
. authorized Work Qrders completed and accepted up~to the date of termination. If the contract is
terminated within the trial period, the City reserves the option to award_ the contract to the next low
responsive bidder by mutual agreement. Any new award will be for the remainder of the contract
and will also be subject to this trial period.
10. Enerqv Savinas Guarantees: Pursuant to RCW 39.35A.020, there will be a guarantee of the
annual energy cost savings attributed to the Project (Work Order) installed by the Gontractor. The
City may also require perFormance and payment guarantees.
For the energy cost savings guarantee, the City shall require either a retainage guarantee or a
surety bond. The City will have the right to decide, from project to project, whether performance,
6 of 24 McKinstry Essention Inc. ESCO Coritract .
Vendor Contract #0000001961
Attachment #1
payments and savings would be guaranteed through a bond or through retainage withheld from
the Contractor's invoices for the particular project. The bond or refainage will be used to
guarantee project completion ~and payments, buf also to guarantee realization of the project
energy cost savings. The City reserves the right to make the final decision as to the form of
guarantee required for each specific Project, but antiapates selecting retainage as a guarantee
option when a project is of a small enough value to make retainage practical and reasonable.
The retainage or bond shall provide protection and payment to the City in the event that the
t- .
Contractor does not perform as gua.
.ranteed or if the post-installation cost savings are not realized. '
The Conservation Savings Project Work Order will detail the savings to be achieved and will state
a method for the verification and City's acceptance of such savings. In the event the Contractor
does not perform under the contract or does not deliver the guaranteed energy cost savings, the
retainage or the bond shall be used (1) to compensate the City for the equivalent value of the
shortfall between the actual savings and the guaranteed savings; and (2) to satisfy the claim of
any person or persons, mechanic, subcontractor or materialman who.shall perform any labor
upon such contract or the doing of said Work, and all persons who shall supply such person or
persons or subcontractors with.provisions or supplies for carrying on such work; and (3) to secure
performance of any Work Contractor fails to perform under the Work Order.
Retainage: If the City elects to use retainage as the method of guarantee for a particular Project
Work Order, the retainage shall be reserved and retained from monies eamed by the Contractor
during the progress of the Work in a sum equivalent to the projected savings for the Conservation
Savings Project work. Such retainage shall be used as a trust fund for the protection and
payment (1) to the City forthe guaranteed energy sav'ings attributed to the Ptoject as part of the
Conservation Project Work Orcier, and (2) of any person or persons, mechanic, subcontractor or
materialman who shall perform any labor upon such contract or#he doing of said Work, and all
persons who shall supply sucfi person or persons or subcontractors with provisions or supplies for
carrying on such work.
Monies reserved shall, at the option of the Contractor, be:
(1) Retained in a non-interest bearing fund by the City of Seattle until 60 days following the
Completion Date, which expressly includes final verification and acceptance of the post-
installation savings; or
(2) Deposited by the City of Seattle in an interest-bearing account in a bank, mutual savings
bank, or savings and loan association, not subject to withdrawal until 60 days following
the Completion Date; or
(3) Placed in escrow with a bank or trust company by the City of Seattle until 60 days
following the Completiori Date. When the monies reserved are to be placed in escrow the
City of Seattle will issue a check representing the sum of the monies reserved payable to
the bank or trust comPany and the Contractor jgintly. Such check shall be converted into
bonds and securities chosen 6y the Contractor and approved by the City of Seattle and
the bonds and securities held in escrow.
Contractor shall designate the option desired on the $election, of Retainage Option form as
provided in this section for any Contract Project where the"City has required retainage at the time
the Contractor executes the Conservation Savings Projeet VVork Order. The Contractor in
choosing option (2) or (3) agrees fo assume full respons'ibilify to pay all costs wFiich may accrue
from escrow services, brokerage charges or both;' and further agrees to assume all risks in
' connection with the investment of the retained percentages -in securities.
Release of retained, percentage will be made 60 days following the establishment of the
Completion Dafe including verification and acceptance ofi post-installation savings for the project,
by the City of Seattle provided the following conditions are met:
7 of 24 McKinstry Essention Inc. ESCO Contract
Vendor Contract #0000001961
Attachment #1
In the event claims are filed, the Contractor will be paid such retained percentage less an amount
sufficient to pay any such claims together with a sum deterrnined by the City of Seattle sufficient to
pay the cost of foreclosing on claims and to cover attomey's fees.
SELECTION OF •
RE?AINAGE OPIION:
. ..i:.j . . . ' )l
Contract Bond: The City may, in lieu of the City withholding retainage for the Project Work
Order, require the Contractor to submit a bond as protection and payment, in a form acceptable to
the City.
When the City requires a bond, the Contractor shall provide a bond in an amount equal to the
sum of: (1) one hundred percent (100%) of the attributed savings as guaranteed in the
Conservation Savings Project Work Order and (2) twenty-five percent (25%) of the total cost of
the installation, including Washington State Sales Tax. This total value shall cover faithful
perFormance of the Conservation Savings Project Work Order including the associated energy
savings guarantee, issued by a properly licensed surety company registered with the Washington
State Insdrance Commissioner. Surety must either appear on the United States Treasury F°
Department's most current list (Circular 570 as amended or superseded) or the Surety must have
a current rating of at least A-:VII in A. M. Best's Kev Ratin4 Guide.
The bond shall be on the form provided below.
At the conclusion of project performance, the City may accept a warranty bond to replace the full
performance and payment bond, which if accepted by the City, must be in force throughout the
warranty period including the period of time necessary to complete post-installation savings
verification, and shall be conditioned upon full performance of all obligations imposed upon the
Contractor and resulting contract including, without limitation, delivery and installation of
necessary equipment, in-warranty service, extended service and perFormance guarantee. The
Warranty Bond, if accepted, must be at least equal to the value of the guaranteed post-installation
savings attributed to the project, as specified in the Conservation Services Project Proposal for
the resultant Project Work Order.
The cost of the bond, and warranty bond if any, will be the Contractor's responsibility and shall be
reflected on their Conservation Services Project Proposal
See the Bond Form, Contract Bond Instructions and instructions for signature embedded below.
~ El El
ESCO Paymerit artd \Contract Bond Contract Bond
Perfomsnce Bord.dc Instrudions 6-7-05 Prinapal Signature Ids
11. Federal Davis Bacon Labor Standards Provisions & Waqe Index and Federal Bond
Repuirements: For projects which are Federally funded, the Contractor and any subcontractor
shall abide by all Federal Davis-Bacon Labor Standards and shall not pay any laborer, worker or
mechanic less than the current prevailing hourly wage rates for the worker classifications that are
provided for under Prevailing Wages as issued by the State of Washington and U.S. Department
of Housing & Urban Development for the County in which the work shall be performed whichever
is higher. This includes Work Orders of any dollar amount. (See Attachments #3, 4 and 5)
In the event the City authorizes a Work Order that will be funded by federal money in an amount
equal to or greater than $100,000, Contractor will be required to obtain a perFormance bond and a
payment bond, both equal to the full work order value. City will notify the Contractor of any
8 of 24 McKlnstry Essention Inc. ESCO Contract
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Attachment #1
projects where this will be applicable prior to issuing the Work Order.
12. Pavment/Pavment Procedures: Seattle agrees to compensate as, specified herein, in
consideration of acceptable Contractor performance. Payment shall oniy be made for services
perFormed andlor product delivered, after receipt, review and authorizafion by the City. Such
payment shall be paid according to early payment discount terms, or if no early payment discount
is offered,.ttiirty.(30) days after the City's receipt and aceeptance of the goods or completion and
acceptance of the services. Payment=periods will be computed from either the date of delivery an
. acceptance of all goods.ordered, the acceptance bythe City of completion of all services, or the
date of receipt of a correct invoice, whichever date is later. This section is not intended to restrict
partial payments that are specifed in the contract. . All, dollars referenced in this Contract and
attachmenfs are US Dollars.
13. Invoices: Invoices must show a breakdown of senrices or products as requested by the Project
Manager. Invoices must show the Department and Project Manager including the Vendor
Contract number. The Contractor will be fumished a lisf of invoice address of each City
department.
14. Taxes. Fees and Licenses: ~
A. Taxes: Where required by state statute, ordinance or ~egulation, Contractor shall pay for and
maintain in curcent status all faxes that are necessary for contract performance. Unless
otherwise indicated, Seattle agrees to pay State of Washington sales or use taxes on all
applicable consumer services- and materials purchased. No charge by the Contractor shall be
made for federal excise taxes and Seattle agrees to fumisfi Contractor with an exemption
certificate where appropriate:
B. Fees and Licenses: Contractor shall pay for and maintain in a current status, any license fees,
assessments; permit charges, etc., which are necessary for contractperformance. It is the
Contractor's sole responsibility to monitor and determine: any changes or the enactment of any
subsequent requirements for said fees, assessments, or charges and to immediately comPly with
said changes during the entire term of this Contract. Contractor must pay all custom duties,
brokerage or import fees where applicable as part of the cdntract price. Contractor shall take all
necessary actions to ensure thaf materials or equipment purchased are expedited through
customs. -
C. Supplier is to calculate and enter the appropriate Washington State and local sales tax on the
invoice. Tax is to be computed on new items after deduction of any trade-in, in accordance with
WAC 458-20-247.
15. Deliverv: Except when instructed otherwise, Delivery must be made during normal work hours
and within timeframes proposed by Contractor herein and as accepted by Seattle. Failure to
comply may subject Contractor to non-delivery asse"ssment charges and/or damages as
appropriate. Seattle reserves the right to refuse shipment when delivered before or after normal
working hours. Gontractor shall verify specfic working `hours of offiees and so instruct carrier(s) to
deliver accordingly. The acceptance by Seattle of late perFormance without objection or
reservation shall not waive the righf of Seattle to claim damages for such breach, nor preclude
Seattle from pursuing any other remedy provided herein, including termination, nor constitute a
waiver of the requirements for the timely performance of any obligation remaining to be perForrned
by Contractor. All deliveries are to be made to the applicable delivery'location in accordance with
Interstate Commerce Commission rules or as indicated in Purchase Order. When applicable, Contractor shall take necessary actions to safeguaid iteins d'uring inclemenf weather.
16. Identifcation: All invoices, packing slips, package"s, instruction manuals, correspondence,
shipping notices, shipping, containers, and other written documents affecting "this contracf shall be
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identified by the"applicable purchase order number. Packing lists shall be enclosed with each .
shipment, indicafing-the contents therein.
17. , Charaes for Handiiriq: No charges wilf be allowecl for handling that inclucJes but is not limited to
packing, wrapping, bags, containers, or reels, unless otherwise stated herein.
18. Contract Notices, Deliverable Materials and Invoices Deliverv: The City of Seattle agent for
_
Contract7:changes shall be the Gity of Seattle BuyerI named below, hereinafter referred to as> .
"Buyer~:ty Contract notices such as change requests; shall be delivered to the Bayer at the' '
following addresses (or such other address as either party may designate in writing):
If delivered by the U.S. Postal Service, it must be addressed to:
Michael Mears City of Seattle Purchasing and Contracting Services
PO Box 94687
Seattle, WA 98124-4687
If delivered by other than the U.S. Postal Service, it must be addressed to:
Michael Mears
} City of Seattle Purchasing and Contracting Services
Seattle Municipal Tower
700 5th Ave., #4112
Seattle, WA 98104-5042
Phone: 206-684-4570
Fax: 206-233-5155 -
E-Mail: michael.mears(a)-seattle.QOv
Project work, invoices, and communications shall be delivered to the City Project Manage"r of the
specific Conservation Services Project. '
19. Reqresentations: Contractor represents and warrants that it has the requisite training, skill and
experience necessary to provide Work and is appropriately accredited and licensed by all applicable
agencies and govemmental entities. ; 20. Warranties: Contractor warrants that all materials, equipment, and/or services provided under this
Contract shall be fitfor#he purpose(s) for which intended, for merchantability, are properly package,
proper instructions and wamings are supplied, that all goods comply with applicable safety and health
standards, that an MSDS Sheet is supplied as required by law, and thatproducts or services conform
to the requirements and specifications herein. Acceptance of any service and inspection incidental
thereto, by Seattle shall not alter or affect the obligations of the Confraetor or the rights of Seattle.
21. Indeaendent Contractor: It is the intention and understanding of the Parties that Contractor shall be
an independent contractor and that Seattle shall be neither liable for nor,obligated to pay sick leave,
vacation pay or any ottier benefit of employment, nor to pay any social security or. other tax that may
arise as an incident of employment. The Contractor shall pay all income and other taxes as due.
Industrial or other insurance that is purchased for the benefit of ttie Contractor shall not be deemed to
convert this Contract to an employment contract. It is recognized that GonVactor may or will be
performing work during theterm for other parties and that Seattle is not the exclusive user of the
services that Contractor provides.
22. Insbectiort: The Work shall be subject, at all times, to inspection by and with approyal of Seattle, but
the making (or failure or delay in making) such inspection or approval shall not relieve Contractor of
responsibilityfor pertormance of the Work in accordance with this Contract, nofwithstanding Seattle's
knowledge of defective or non-complying performance, its substantiality or the ease of its discovery.
Contractor shall provide sufficient, safe, and proper facilities and equipment for such inspecfion and
10 of 24 McKinstry Essention Inc. ESCO Contract
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Attachment #1
free access to such facilities.
23. Title, Risk of Loss. Freiaht, Overaaes or Underaaes: Title of goods received under this contract
shall remain with the Contractor untii they are delivered to the address specified,, at which time title
pa"sses to Seattle. Contractor agrees to bear all risks of loss,, injury, or destruction of goods and
materials ordered he"rein which occur prior to delivery and acceptance. Such loss, injury, or
destrucfion shall not release Contractor from anyobligations under. Prices inctude freight prepaid and
allbwed. Contractor assumes the risk of every ~ncrease, and receives the benefit of every decrease,
in delivery rates and charges. Shipments sha1lYcorrespond with the Conttact; any unauthorized `
advance or excess shipment is retumableat Contractor's_expense. .
11 of 24 McKinstry Essention Inc. ESCO Contract
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Attachment #1
24. PerFormance: Acceptance by Seattle of unsatisfactory performance with or without objection or
reserVation shali not waive the righfi to claim damage for breach, or terminate the confract, nor
constitute a waiver'of requirements for safisfactory performance of anybbligation remaining to tie'
performed by Contractor.
25. Affirmative Efforts for Utilization ofiWomen and Minoritv Subcontractinq and Emalovment.
Non discrimination in providina services: .
A. Emqlovmenif`Actions: Contractor shall not discriminate againsf any employee or applicanf foremployment because of race, religion, creed, age, color, sex, marital status; sexual orientation,
gender identity, political ideology, ancestry, national origin, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification. Contractor shall take
affirmative action to ensure that applicants are employed, and that employees are treated during -
employment, without regard to their creed, religion, race, age, color, sex, national origin, marital
status, political ideology, ancestry, sexual orientation, gender identity, or the presence of any sensory,
mental orphysical handicap. Such action shall include, but not be limited to employment, upgrading,
promotion, demotion, or transfer; recruitment or recruitment advertising, layoff or termination, rates of
pay, or other forms of compensation and selection for training.
B. In accordance witti Seattle Municipal Code Chapter 20.42, Contractor shall actively solicit the
employment and subcontracting of women and minority group members when necessary and
commercially useful for purposes of fulfilling the scope of work required for this Contract. Contractors
shall actively solicit su6contracting bids from subcontractors as needed to perForm the work of this
contract, from qualified, available and capable women and minority businesses. Confractors shall
consider the grant of subcontracts to women and minority bidders on the basis of substantially equal
proposes in the light most favorable to women and minority businesses. At the request of Seattle,
Contractor shall promptly furnish evidence of the Contractor's compliance with these requirements.
C. ifi upon inYestigation, the Director of Executive Administration finds probable cause to believe that
the Contractor has failed to comply with the requirements of this Section, the Contractor shall notified in writing. .The Director of Executive Administration shall give Contractor an opportunity to be heard,
after ten calendar days' notice. If, after the Contractor's opportunity to be heard, the Director of
Executive Administration still finds probable cause, s/he may suspend the Contract and/or withhold
any funds due or to become due to the Contractor, pending compliance by the Contractor with the
requirements of this Section.
D. Any violation of the mandatory requirements of this Section, or a violation of Seattle Municipal
Code Chapter 14.04 (Fair Employment Practices), Chapter 14.10 (Fair Contracting Practices),
Chapfer 20.45 (City Contracts - Non-Discrimination in Benefits), or otherlocal, state, or federal non-
discrimination laws, shall be a material of contract for which the Contractor may be su6ject to
damages and sanctions provided for by the Vendor Contract and by applicable law. In the event the
Contractor is in violation of this Section shall be subject to debarment from City contracting activities.in
accordance with Seattle Municipal Code Section 20.70 (Debarment).
26. Eaual Benefits: Compliance with SMC Ch. 20.45: The Contractor shall comply with the
requirements of SMC Gh. 20.45 and Equal Benefits Program Rules implementing such requirements,
under which the Contractor is obligated to provide the same or equivalent benefits ("equal benefits°) fo
its employees with domestic partners as the Contractor provides to its employees with spouses. Af
Seattle's request, the Contractor shall provide complete information and verification of the
Contractor's compliance with SMC Ch. 20.45. Failure to cooperate with such a request shall
constitute a material breach of this Contract. (For further information about SMC Ch. 20.45 and the
Equal Benefts Program Rules call (206) 684-0430 or review information at
htta://citvofseattle: net/contract/equalbenefits/.)
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Remedies for Violations of. SMC Ch. 20.45: Any violation of this Section shall be a material breach of
Contract for which the City may.
, A. Require Contractor to pay actual damages for each day that the Contractor is in violation of
SMC Qh. 20.45 during the term of the Contract; or
. B. Terminate the Contract; or
C. Disqualify Contractor from bidding on or being awarded a City contract for a period of up to
five (5) years; ar
D. Impose such other remedies as specifilly provided far in SMC Ch. 20.45 and the Equal
Benefits Program Rules promulgated4tiereunder.
27. Publici : No news. release, advertisement, promotional material, tour, or demonstration related to
Seattle's purchase or use of the Contractor's product or secvices perforrned pursuant to this Contract shall be produced, distributed, or take place, without the,prior, specific written approval of the Citys
Project Manager or his/her designee.
28. General Leqal Re4uirements: .
A. General Reauirement: Contractor, at no expense_to Seattle, shall comply with all applieable laws
of the United States and the State of Washington; the Charter and ordinances of Seattle; and
rules, regulations, orders, and directives:of their administrative agencies and the officers thereof.
Without limiting the generalityof this paragraph, thejContractor shall specfically comply witfi tlie
following requirements of this section.
B. Licenses and Similar Authorizations: Confractor, at no expense to Seattle, shall secure and
maintain in full force and effect during the term of this Contract all required licenses, permits, and
similar legal authorizations, and comply with all requirements thereof.
C. Taxes: The Contractor shall pay, before delinquency, all taxes, import duties, levies, and
assessments arising from its activities and undertakings under this Contract; taxes levied on its
' property, equipment and improvements; and'taxes on the Contractor's interest in this Contract.
29. American with Disabilities Act: Contractor shall comply with all applicable provisions of the
Americans with Disabilities Act of 1990 (ADA) in performing its obligations under this Contract. In
particular, if the Contractor is providing services, programs or activities to Seattle employees or
members of the public as part of this Contract, the Confractor shall not deny participation or the
benefits of such services, programs, oractivities, to people with disabilities on the basis of such
disability. Failure to comply witti the provisions of the ADA shall be a material breach of, and grounds
for the immediate termination of, this Contract.
30. OSHAIWISHA: Contractor agrees to comply with conditions of the Federal Occupational Safety and
Health Acts of 1970 (OSHA), as may be amended, and, if it has a workplace within the State of
Washington, the VVashington Industrial Safety and Health Act of 1973 (WISHA); as may be amended,
and the standards and regulations issued thereunder and certifies that all items fumished and
purchased under this order will conform to and comply with said standards and regulations.
Contractor further agrees to indemnify and hold harmless purchaser from all damages assessed
against purchaser as a result of Contractor's'failure to comply with the acts and standards thereunder
and for thefailure of the items fumished underthis order to so comply.
31. Prevailinq Waae Requirements:. A. This contract is subject to prevailing wages, as required by RCW 39.12 (Prevailing Wages on
Public Works) and RCW 49.28 (Hours of Labor) as amended or supplemented.
B. Gontractor and any subcontractors shall be responsible for compliance with all provisions herein.
C. The awarded Contractor and all su6contractors shall file promptly with the Washington Department
of Labor & Industries (L&I) an Intent to Pay Prevailing Wage Form concurrent with the execution of
each Work Order. When approved 6y L&1, a copy shall be sent to the Project Manager before any
,..13 of 24 McKinstry Esserttion Inc. ESCO Contract
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Attachment #1
work is performed. The City requests this be done on-line to allow for rapid .verification of.submittal.
hitp://www.lni.wa.gov/TradesLicensin4/PrevWacae/default.asp. However, the City will accept forms
submitted through paper procedures. If the Contractor utilizes paper submittal, a copy of tFie '
approved form sliall be promptly provided to the Project Manager: Contractor is responsible forall
fees assessed by Washington LSI for all forms filed.
D. Contractor and any subcontractor shall not pay any laborer, worker or mechanic less than the current
prevailing houdy wage-rates for the worker classficafions that are provided for uniier Prevailing Wagas issued by the State of VVashington for the County in which the work shall'be perFormed.
E. Vocationally handicapped workers, i.e. those individuals"whose eaming capacityis impaired by
physical or mental deficiency or injury, maybe employed at wages lower than the establisheti prevailing
wage. The Fair Labor Standards Act requires that wages based on indiVidual productivity be paid to
handicapped workers employed under certificates issued by the Secretary of Labor. These certficates
are acceptable to the Department of Labor and Industries. Sheltered workshops for the handicapped
may submit a requesfto the Department of Labor and Industries for a special certificate, which would, if
approved, entitle them to pay their employees at wages, lower than the established prevailing wage.
F. In certain situations, the Vendor may indicate an exception on the Intent Form which exemptsthe
requirement to pay at least prevailing wages rates for the following: sJ
0 Sole owners and their spouse.
• Any partner who owns at least 30% of a partnership.
• The president, vice-president, and treasurer of a corporation if each one owns at least 30% of .
the corporation.
• Workers regularly employed on monthly or per diem salary by state or any political subdivision
created by its laws.
G. Prevailing Wage "rates in effect at the time of bid opening, dated 8/31 /06, are attached. . These
wages shall remain in effect through 8/30/07, and be adjusted each year thereafter, to reflect the
current Prevailing Wage Rafes. It is the sole responsibility of the Contractor to assign the appropriate :
classification and associate wage rates to all laborers, workers or mechanics that perform any work
under this contract, in conformance with the scope of work descriptions, of the Industrial Statistician of
#he Washington State Department of Labor and Industries.
H. With each invoice, Contractor will attach or write a statement that wages paid were comPliant to
applicable Prevailing Wage rates.
1. Upon Work Order completion, Contractor and each subcontractor shall then fle the Affidavit of
Wages Paid (form 1_700-007-000) approved by the Industrial Statistician of Washington State L$I: This may be perFormed on-line if the Contractor has initiated the original Jntent to Pay RreVailing Wage
process on line. The receipt of the approved affidavit is required before Seattle can pay the final
invoice. .
J. For jobs above $10,000, Contractor is required to post for employees' inspection, the lntent form .
including the iist of the labor classifications and wages used on the project... This may be postured in
the nearest local office, for road construction, sewer line, pipeline, transmission Jine, streef or alley
improvement projects as long as the employer provides a copy of the Intent form to the employee
upon request. ,
K. In the event any dispute arises as to what the prevailing wages are for each Work Order, and the
dispute cannot be solved by the parties involved, the matter shall be referred to the Director of the
Department of Labor and Industries of the State of Washington. In such case, the Director's decision
shall be final, conclusive and 6inding on all parties. If the dispute involves a federal prevailing wage
rate, the matter shall be referred to the U.S. Secretary of Labor for a decision. In such case, the
Secretary's decision shall be final, conclusive and binding on all parties.
14 of 24 McKinstry Essention Inc. ESCO Contract
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Attachment #1
31. Indemnification: To the extent permitted by law, the Contractor shall protect, defend, indemnify and
hold the City harmless from and against all claims, demands, damages, costs, actions and causes of
actions, liabilities, fines, penalties, judgments, expenses and attomey fees, resulting from the injury or
` death of any person or the damage to or destruction of property, or the infringement of any patent,
copyright, or trademark, oe trade secret arising out of the work performed or goods provided under this
Contract, or the Contractor's violation of any law, ordinance or regulation, contract provision orterm,
or condition of regulatory authorizafion oc permit, except for damages resulting from the sole
negligence of the City. As #o the'City of Seattle, the Cop,.fractor waives any immunity it may have
under RGW Title 51 or any other Worker's Compensation statute. The pafies acknowledge that this
waiver has been negotiated by them, and that the confract priee reflects this negotiation.
32. lnsurance:
A. Contractor shall at all times during the term ofthis Contract maintain the insurance and/or self-
insurance coverage's in force as specified below.
B. Contractor shall specify any deductible or self-insured retention in excess of $100,000. Payment of
any such deductible or self-insured retention shall 6e the responsibility of ConVactor except to the
extent to which Seattle may be liable.
C. Contractor and Seattle agree that the risk of accidental lo.ss required to be covered by insurance or
, self-insurance under this Section shall not'be subjectto any limitation of liability or similarprovision.
D. Certification of insurance shall be issued to: City of Seattle
Risk Management Division
P.O. Box 94669
Seattle, WA 98124-4669
Email: riskmanaqementCcDseattle.4ov `
Fax: (206) 615-0065 _ Certification shalL• . a. Include either an additional insured endorsement or:a copy of blanket additional insured
policywording that documents Seattle's status as an additional insured (1); should third
party legal liability insurance be self-insured, Contractor shall disclose the self-insured retention(s), state that Seattle would be protected under the self-insurance as an additional -insured to the same extent as if a primary commercial liability insurance policy had, been
issued and shall provide the address to which a tender of claim should be directed.
b. State that coverage shall not be cancelable withoutforty-five (45) days prior written notice of
cancellation, except ten (10) days notice with respect to non-payment of premium.
c. Should the City not provide a_ ny,insurance requirements to tMe contrary within the RFP
and/pr attached, the following requirements sh"all be in effect. Contractor shall maintain at its
own expense at all times during the term of this Contract the following insurance with limits of
liability consistent with those generally carried:by similarly situated enterprise: •
(1) Commercial General Liability insurance, including premises/operations,
products/completed operations; personaUadvertising injury, contractual liability,-fire
legal/tenant liability, stop gap/employer's liability:and independent contractors liability; (2)
if any vehicle, watercraft or aircraft is used in the performance of this Purchase
OrderNendor Contract, of a minimum of $1,000,000 per occurrence;
(2) Automobile Liability, Watercraft Liability and/or Aircraft Liability insurance, including
coverage for owned, non-owned, leased or hired vehicles, watercraft and aircraft, as
appropriate of a minimum of $1,000,000 per occurrence;; and
15 of 24 McKinstry EssenUon lna ESCO Contract
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,
(3) Worker's Compensation ("Industrial Insurance°) as required by Title 51 of the Revised
Code of Washington: -
(4) The insurance as provided under items (1) and (2) above shall include by endorsement
the City of Seattle as an additional insured (as respects item (1), per ISO form CG 20 10
or CG 20 26 or equivalent additional insured endorsement wording; or equivalent blanket
additional insured policy wording) and such additional insured status for the City shall
apply as respects the full limits. of all valid and collectible Automobile Liability, Watercraft
A' tiability and7or Aircraft Liability insurance, whether primary, excess, contingenf; or -otherwise; shall.be primary insurance as respects the City, and any other insurance or
self-insurance maintained by the City shall be excess and non-confibututory with the
Contractor's insurance; and, shall be placed with insurers with not less than an A- VII
A.M:, BesYs rating unless insurance.has been procured underthe provisions*of chapter
48.15 RCW (Unauthorized "Surplus Lines" Insurers). It. is specifically agreed that the
insurance requirements in this section 2:18 shall override any limitation of liability or
similar provision in any agreement_or statement of work between the City and the
Contractor and that no Contractor°s insurer shall assert the right to invoke anysuch
limitation.
(5) Contractor shall rtot be required to provide evidence of insurance, unless required to do
so under the ferms of a Request For Quotation (RFQ) or a Request For Proposal (RFP),
and should additional insurance reGuirements (including but not limited to higher limits of
liability) be specified in an RFQ or RFP, those requirements shall apply.
33. Audit: Upon request, Contractor shall permit Seattle, and any othergovemmental agency involved in
the funding of the Work ("Agency'), to inspecf and audit all pertinent books and records of Contractor,
any subcontractor, or any other person or entity that performed work- in connection with or related to
the Work, at any and all times deemed necessary by Seattle or Agency, including up to six years after
the final payment or release of withheld amounts has been made underthis Contract. Such
inspection and audit shall occur in King County, Washington or other such reasonable loca#ion as
Seattte or Agency selects. The Contractor shall supply Seattle with, or shall permit Seattle to make, a
copy of any books and records and any portion thereof. The Contractor shall ensure that such
inspection, audit and copying right of Seattle and Agency is a condition of any subcontract; agreement
or other arrangement under which any other person or entity.is permitted to perForm work under this
Contract. .
34. Contractual Relationshin: The relationship of Contractor to Seattle byreason ofitfiis Contract shall .
be that of an independent contractor. This Contract does not authorize Contractor to act as the agent
or legal representative of Seattle for any purpose whatsoever. Contractor is not granted any express
or implied right or authority to assume or create any obfigation or responsibilityon befialf of or in, the
name of Seattle orto 6ind Seattle in any manner or thing whatsoever.
35. Assianment and Suboontractina: Contractor shall not assign or subcontract any of its obligations
under this Gontracf without Seattle's written consent, which may be granted or wittiheld in Seattle's
sole discretion. Any subcontract made by Contractor shall incorporate by reference all the terms of
this Contract except for Equal Benefit provisions. Contractor shall ensure that all subcontractors
comply with the obligations and requirements of the subcontract, except for Equal Benefit provisions.
Seattle's consenfito any assignment or su6contract shall not releasethe*Contractorfrom liability under
this Contract,,or from any obligation to be performed underthis Contract, whetlier occumng before or
after such consent, assignment, or subcontract:
16 of 24 McKinstry Essention Inc. ESCO Contract
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36. Suaervision and Coordination: Contractor shall:
o Gompetently and efficiently, supervise and direct the implementation and completion of all
corrtract requirements specified herein. Designate in its bid or proposal to Seattle, a representative(s) with the authority to legally commit
Confraetor's firm. All communications given or received from the Contractor's representative shall
be binding on the Contractor.
• Promote and offer to Purchasers only those materials, equipment and/or services as stated herein
,
and allowed for by confractual requirements. Volation of this condition. will be grounds for
confract termination.
37. Involvement of Former Citv Emdlovees: Contractorshall promptly notify Seattle in writing of any
, person who is expected to'perform any of the Work and who,'during the twelve (12) months.
immediately prior to the expected commencement date of such work or subcontract, was a City officer
or employee. Contractor shall ensure thaf no Work or matter related to the 1Nork is perFormed by any
person (employee, subcontractor, or otherwise) who was a City officer or employee within fhe past
twelve (12) months; and as such was offcially involved in, paiticipated in, or acted upon any matter
related to the Work, or is otherwise prohibited from such performance by SMC 4.16.075.
38. Anti-Trust: Seattle maintains that,. in actual practice, overcharges resulting from antitrust violations
~ are bome by the purchaser. Therefore the Contractor hereby assigns to Seattle any and all claims for
such overcharges except overcharges which result from antitrust violations commencing after the.
price is established under this contract and wh'ich are not passed on to Seattle under an escalation
clause.
39. No Conflict of Interest: Contractor.confirms that Contractor tloes not have a business interest or a
close family relationship wifti any City officer or employee who was, is, or will.be involved in the
Contractor selection, negotiation, drafting, signing, administration, or evaluating the Contractor's
perFormance.
y-
40. No Gifts or Gratuities: Contractor shall not directly or indirectly offer gifts and resources to any
person employed by the City that is intended, or may be reasonably infended, to benefit the Vendor by
way ofi award, administration, or in any other way to influence purchasing decisions of #he City. This
includes but is not limited to, City Purchasing office employees and City employees that do business
with, order, purchase or are part of decision-making for business, contract or purchase decisions.
The Vendor shall not offer meals, gifts, gratuities, loans, trips, favors, bonuses, donations; special
discounts, work, or anything of economic value to any such Gity employees. This does not prohibit
distribution of promotional items that are less than $25 when provided'as part of routine business
activify such as trade shows. Any violation of this provision may,result in termination of this Contract.
Nothing in this Contract prohibits donations to campaigns for election to City office, so long as the
donation is disclosed as required by the election campaign disclosure laws of the City and of the
State.
41. Errors 8 Omissions: Correction: Contractor shall be responsible for the professional quality,
technical accuracy, and the coordination ofi all designs, drawings, specifications, and other services
fumished by or on the behalf of the Contractor under this Contract: The Contractor, without additional -
compensation, shall correct or revise any errors or omissions in the designs, drawings, specifications,
and/or other Contractor services immediately upon notificafion by Seattle. The obligation provided for
in this section with respect to any: acts or omissions during the term of this Contract shall survive any
termination or expiration of this Contract-and shall be in addifion to all ofher obligations and liabilities
of the Contractor.
42. Intellectual Propertv Riqhts: Patents. Contractor hereby assigns to Seattle all rights in any
invention, improvement, or discovery, together with all related information, including but not limited to,
designs, specifications, data; patent rights and findings develoPed in connection with the perFormance
of Contract or any subcontract hereunder: Notwithstanding`the a6ove, the Contractor does not
convey to Seattle, nor does Seattle obtain, any right to any document or material utilized by Contractor
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Attachment #1 that was created or produced separate from this Contract or was preexisting material (not already,
owned by Seattle), provided that the Contractor has clearly identified in writing sucfi material as
preexisting prior to commencement of the Work. `To the extent that preexisting materiais are
incorporated into the Wor1c, the Contractor grants Seattle an irrevocable, non-exclusive, fully paid,
royalty-f[ee right and/or license to use, execute, reproduce, display, and transfer the preexisting .
material, but only as an inseparable part of the Work.
43. Coavriahts:. For materials,and documents prepared by Contractor in connection with the Work_
Gontractor shall retain the copjrright (including the right of reuse) whether or no# the Work is. completed. Contractor grants to Seattle a non-exclusive, irrevocable, unlimited, royalty-free license to
use every document and all other materials prepared by the Contractor for Seattle under, this Contract.
If requested by Seattle, a coPy of all drawing, prints, plans, field notes, reports, documents„ files, input
materials, output materials, the media upon which they are located (including cards, tapes, discs.and
'other storage facilities), software programs or packages (including source code or codes, object
codes, upgrades, revisions, modifications, and any related materials) and/or any other related
documents or materials which are developed solely for, and paid for by,Seattle in connection with the
performance of the Work, shall be promptly delivered to Seattle.
Seattle may make and retain copies of such documents for its information and reference in
connection with their use orr the pFoject. The Contractor does not represent or warrant that such
documents are suitable-for reuse by Seattle, or others, on extensions of the project; or on any other
project. Contracfor represents and warrants that it has all necessary legal autFiority to make the
assignments and grant the licenses required by this Section.
44. Proprietarv and Confidential Information: The parties agree that they will not permit the
duplication or disclosure of any information designated in advance by ttie other party as "Confidential
and Proprietary" to anyperson (other than its own employee, agent, or representatiVe who must haye
such information for the perFormance of that party's obligations hereunder) unless such duplication,
use or disclosure is specifically authorized in writing by the other party or is required by law:
"Confidential and Proprietary" information does not include ideas, concepts, know-how or techniques
related to information that, at the time of disclosure, is in the public domain unless the entry of that
inforrnation into the public domain is a result of any breach of this Contract. Likewise, "Confdential
and Proprietaryl" information does not applyto information that is independently developed, already
possessed without obligation of confidentiality; or rightFully obtained from a.third party without an
obligation of confidentiality.
Contractor's Understandinq and Obliqations
1. Contractor understands that any records (including but not limited to bid or p[oposal
submittals, the Contract, and any other contract materials) it submits to Seattle, or ttiat are
used by Seattle even if the Contractor possesses the records, arepu6lic records under
Washington State law, RCW Chapter 42.17. Public records must be promptly "disclosed
upon request unless a statute exempts them from disclosure. Contractoralso understands
that even if part of a record is exempt from disclosure, the rest of that recoed generally .
must be disclosed.
2. Contractor must separate and clearly mark as °proprietary" information all records related
• to this Contract or the performance of this Contract that the Contractor believes_ are .
exempt frorn disclosure. Contractor is to be familiar with potentially-applicable public-
disclosure exemptions and the limits of those exemptions, and will mark as "propnefary"
only information that the Contractor believes legitimately fits within an exemption and will
stafe the stafutory exception upon which it is relying.
. 3. If Seattle notifies the Contractor of a public disclosure request, and the Contractor believes
records are exempt from disclosure, it is the Contractor responsibility to make its own '
determination and pursue a lawsuit under RCW 42.17.330 to enjoin disclosure. The
Contractor must obtain the injunetion and serve it on Seattle before the close of business
18 of 24 McKinstry Essention Inc. ESCO Contract
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on the tenth business day aftec Seattle sent notfication to the Contractor. It is ;the
Contractor's discretionary decision whether to file the lawsuit.
4. If Contractor does not timely obtain and serve an injunction, the Contractor is deemed to
have authorized releasing the record.
5. Notwithstanding the above, the Contractor must not take any action that would affect (a).
Seattle's ability to use goods and services provided_under this Contract or (b) the
- Contractor's obligations under this 6ontract.
6. Contractor will fully cooperate with Seattle in identifying and assembling records in case of
any public disdosure request
Seattle's ObliQations
1. Seattle will disclose those parts of records the Confractor has marked as "propri etary
information" onlyto authorized persons unless:
(a) tlie City receives a pu6lic disclosure request, in which case steps 2 and 3 below will
6e exercised before release of the information; or
(b) The Contractor has given Seattle express advance written permission to disclose the
r records. "Authorized persons° means those City officers, employees, contractors and
consultants for whom the proprietary information is necessary to perform their duties
or obligations to Seattle. The term "proprietary information° does not include ideas;
concepts, know how or techniques related to any information that, at the 6me of
disclosure, is in the public domain, unless the entry of that inforrnation into the public
domain is a result of a breach of this Contract. -
2. If Seattle receives a public disclosure request for records that Contractor has marked as
"proprietary information°, Seattle may promptly notify the Contractor of tlie request: Seattle
may postpone disclosing these records for ten business days after it has sent notification
to the Contractor, in orderto allow the.Contractor to file a lawsuit under RCW 42.17.330 to
enjoin disclosure. It is the Contractor's discretionary decision whether to file the lawsuit.
3. If Seattle has notified Gontractor of a public disclosure request, and the Contractar has not
obtained an injunction and served Seattle with that injunction by the close of business on
the tenth business day after Seattle sent notice, Seattle may disclose the record.
4. Seattle has no other obligations conceming records the Contractor has marked as
"proprietary information" under this Contract. Seattle has no obligation to claim any
exemption from disclosure. Seattle is not obligated or liable to the Contractor for any
records that Seattle releases in compliance with this Section or in compliance with the
, order of a court of competent jurisdiction.
45. Interlocal Coooeration Act: RCW 39.34 allows cooperative purchasing between public agencies,
and other politicaF subdivisions. SMC 20.60.100 aISO allows non profits to use these agreements.
Such agencies that fle. an Intergovemmental Cooperative Purchasing Agreement with the City of
Seattle may purchase from Contracts established by Seattle, Unless Confractor declines on the
Contractor Offerto City, the vendor agrees to sell additional items at the bid prices, terms and
conditions, to other eligible govemmental agencies that haye such agreements with Seattle: Seattle
accepts no responsibil'ity for the payment of the purchase price by other govemmental agencies.
Should Contractor require additional pricing forsuch purchases, the Contractor is to name such
additional pricing upon Offer to Seattle. 19 of 24 McKinstry Essention Inc. ESCO Contract
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Attachment #1
46. Extra ..Work: Extra work shall be defined to include additional produots or senrices ordered in.
connection with this project other than that ezpressly provided for in the "Scope of Vlfork° section of
this Contract: Contractor shall not proceed with extra work unless authorized by a written amendment
issued by the RFP Coordinator. Such extra work may be autliorized by a Contractor proposal and a
written acceptance from the City through a Change Order issued 'to the Contractor, or may be
authorized by a Change Order signed byboth parties, whicheverthe C'ity.Buyer requires. Any costs
incurred due to the performance of extra work prior to execution of an amendment will not be
reimbursed under: this Gontrad`'or an amendment. Notwithstanding the. foregoing, the RFP
Coordinator may make reasonable and immaterial changes to this Contract; including place of
delivery, installation or inspection, the method of shipment,.or packing, labeling and identiftcation,
extenSion of the contract, and ancillary matters that Contractor may accommodate without substantial
additional expense to Seattle.
47. Kev Persons: Contractor shall not transfer or reassign any individual designated in this Contract as
essential to. the Work, without the express written consent of Seattle, which consent shall not be
unreasonably withheld. If, during the term of this Contract, anysuch individual:leaves.the Contractor's
employment, the Contractor shall present to Seattle one or more individual(s) with greater or equal
qual'fications as a replacement, subjeet to Seattle's approval, rivhich shall not be unreasonably
withheld. Seattle's approval or disapproval shall not be construed to release the Contractor from its
obligations under this Contract. 48. Disputes: The parties shall endeavor to resolve any dispute or misunderstanding that may arise
under this Contract concerning Contractor's performance, if mutually agreed _to be appropriate,
through negotiations befinreen the Contractor's Project Managec and Seattle's Project Manager, or if
mutually agreed, referred to the City's named representative and the Contractor's seniorexecutive(s).
Either party may decline or discontinue such discussions and may then pursue other means to resolve
such disputes including termination as allowed for within the contract, or may by mutual agreement
pursue other dispute altematives such as altemate dispute resolution processes. Nothing in this ,
dispute process shall in any way mitigate the rights, if any, of either party to terminate the conVact for
cause or convenience.
Notwithstanding all above, if Seattle believes in good faith that some portion of Wortc has not been
completed satisfactorily, Seattle may require Contractor to correct such work prior to Seattle paymenf.
In such event, Seattle will provide to Gontractor an explanation of the concem and the remedy that
Seattle expects. Seattle may withhold from any payment that is otherwise due; an amount thaf Seattle
in good faith finds to be under dispute, or if the Contractor does not provide a sufficient remedy,
Seattle may retain the amount equal to the cost to Seattle fot otherwise correcting or remedying the
work not properly completed.
49. Tecmination:
A. For Cause: Seattle may terminate this Contract if the Contractor is in material breach of any of
the terms of this Contract, and such breach has not been corrected to Seattle's reasonable
satisfaction in a timely manner. B. For Citv's Convenience: Seattle may terminate this Contract at any time, without cause and for .
any reason including Seattle's convenience, upon written notice to the Contractor. '
C. Non-Apqropriation of Funds: Seattle may terminate this Contract at any time without notice due to
non-appropriation, of funds, whether such funds are local, state or federal grants, and no such
notice shall be required notwithstanding any notice requirements that may be agreed upon for
other causes of termination.
D. Acts of Insolvencv: Seattle may terminate this Contract by written notice to Contractor if the
Contractor becomes insolvent, makes a general assignment for the benefit of credifors, suffers or
permits the appointment of a receiver for its business or assets, becomes subject to any
20 of 24 McKinstry Essention Inc. ESCO Contract
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Attachment #1
proceeding under any bankruptcy or insolvency law whether domestic or foreign, or is wound up
orliquidated, voluntarily or otherwise.
E. Temiination for Gratuities: Seattle may terminate this Contract by written notice to Confractor if
Seattle'finds thaf any gratuity in the form of entertainment, a gift, or otherwise, was offered to or
given by the Contractor or any agent therefore to any City official, officer or employee.
.-.r - F. Notice: Seattle is not required to provide advance,noticeof tecrr►ination. Notwithstanding, the
Buyer may issue a terrnination notice with an effective date later than the termination notice itself.
In such case, the Contractor shall continueto provide products and senrices as required by the
Buyer until the effective date provided in the termination notice.
G. Actions uqon Termination: In.the event of termination not the fault of the Contractor, Contractor
shall be paid for the senrices property performed prior;to the effective termination date that has
been specified by the Buyer, together with any reimbursable expenses then due, but in no event
shall such compensation exceed the maximum compensation to be paid underthe Contract.
Contractor agrees that this payment shall fully and adequately compensate Contractor and all
subcontractors for all profits, costs, expenses, IosseS, liabilities, damages, taxes, and charges of
any kind whatsoever (whether foreseen or unforeseen) attri 6utable ta,the termination of this
Contract. Upon termination foc any reason, Contractor.shall provide Seattle with the most current
design documents, contract dacuments, writings and other product it has completed to the date of
termination, along with copies of all project-related correspondence and similar items. Seattle
shall have the same rights to use these materials as if termination had nof occurred.
50. Force Maieure - Susaension and Termination: In the event that either party is unable to perform
any of its material obligations under this Contract because of an event outside of the City's control,
including but not limited to natural orman-made disasters, or an action or decree of a superior '
governmental body (hereinafter referred to as a"Force Majeure Event° or °Event°), the party that has been so affected immediately shall give notice to the other party and shall do everything possible to
resume performance.
Upon receipt of such notice, the affected party shall be excused from such perFormance as is affected
by the Force Majeure Event for the per iod of such Event. If such Event affects the delivery date or
warranty provisions of this Agreement, such date or wamanty period shall automatically be extended
for a period equal to the duration of such Event.
51. Maior Emer4encies or Disasters: The following provision shall be in effect only during major
emergencies or disasters when the.City has activated its Emergency Operations Center and the .
Contractor has been given notice by the City that such activation has occurred. The City is committed
to preparing thoroughly for any;major* emergency or disaster situation., As part of its commitment, the
City is contracting with the Contractor underthe following terms and conditions: Contractor shall .
provide to the City, upon the City's request, such goods and/or services at such time as the City
defermines. In the event the Contractor is:unable to meet the delivery date commitment due to
circumstances beyond the reasonable control of the Contractor, the Contractor shall make such
delivery as soon as practicable. If the Contractor is prevented from making such delivery to the
requested delivery location due to.circumstances beyond its reasonable control, the Contractor shall
immediately assist the City in whatever manner is reasonable to gain access to such goods and/or
services. In the event that the Contractor is unable to provide such goods and/or services as
requested by the, City, the.Contractor may offer to the City limited substitutions for its consideration
and shall provide such substitutions to:.the City as required above, provided the Contractor has
obfained prior approval from the. City forsuch substitution. The Contractor shall charge the City the
price determined in this Contract for the, goods and services provided, and if no price has been
determined, it shall charge the City a price that is normally charged for such goods and/or services
(such as listed prices for items in 5tock). In the event that the City's request results in the Contractor
incurring unavoidable additional costs and causes the Contractor to increase prices in order'to obtain
a fair rate of return, the Confractor shall charge the City a price not to exceed fhe cosUprofit formula
11 of 24 McKinstry Essention Inc. ESCO Contract
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Attachment #1 -
found in this Contract. The Contractor acknowledges that the City is procuring such goods and/or
services for the benefit of the public. The Contractor, in support of public good purposes, shall
consider the City as a customer of first priority and shall make its best efforf to provide to the City the
requested goods and/or services in a timely.manner. For pui-poses of fhis Contraet, a"major
emergency" or "disaster" Shall include, buf is nof limited to a storm, high wind, earfhquake, flood,
hazardous material release, transportation mishaP, loss of any utility service; fire; terrorist activity or
any combination of the above. ,
52. Debarment: In accordance with SMC Ch. 20J6;.the Director of Executive Administration or designee - V
may debar a Vendoe from entering into a Contract with the City or from acting as a subcontractor on
anyConVact with fhe City for up to five years afterdetermining that any of the following reasons exist
a. Contractor has received overall performance evaluations of deficient, inadequate, or :
substandard performance on three or more City Contracts.
b. Contractor failed to.comply with City ordinances or Contract terms, including but not fimited to,
ordinance or Contract terms relating to small business utilization, discrimination, preyailing
wage requirements, equal benefits, or appren#ice utilization.
. c. Contractor abandoned, surrendered, or failed to complete or to perform work on or in
connection with a C'ity Contract.
d. Gontractor failed to comply with Contract provisions,'including but not limited to quality of
- workmanship, timeliness of performance, and safety standards. '
e. Contractor submitted false or intentionally misleading documents., reports, invoices; or other statements to the City in connection with a Contract.
f. Contractor colluded with another contractor to restrain competition.
- g. Contractor committed fraud or a criminal offense in connection with obtaining, attempting to
obtain, or performing a Contract for the:City or any other govemment entity. ,
h. Contractorfailed to cooperate in a City debarment investigation.
i. Contractor failed to comply with SMC 14.04, SMC Ch. 14.10, SMC Ch. 20.42, or SMC Ch.
20.45, or other local, State, or federal non-discrimination laws:
The'Director may issue an Order of Debarment following the proceduresspecified in SMC 20.70.050.
The rights and remedies of the City under these provisions are in addition to anyother rights and '
remedies provided by law or under the Contract.
53. Recvcle Products Reauirements: Whenever practicable, Cpntractorshall use reusable products; `
recyclable products and recycled-content products including recycled content paper on all documents
submitted to the Gity. Contractors are to duplex all materials that are prepared for tFie City under this
Contract, whether such materials are printed or copied, except when impracticable to do so due to the .
nature of the product being produced. Contractors are to use 100% post consumer'recycled content;
chlorine-free paper in such products that are produced for the City, whenever practicable; and to use
other paper-saving and recycling measures in business they conduct with and for#he City. This
direcfive is executed under the Mayor's Executive Order; issued February 13, 2005.
54. Workers.Riaht to Know: "Right to Know" legislation required the Departrrient of Labor and Industries
to estaplish a program to make employers and employees more aware of the hazardous sutistances
in their work environment: WAC 296-62-054 requires among other tfiings that all
manufacturers/distri6utors of hazardous substances, including any of the'ifems listed on this ITB, RFP,
or confract 6id and su6sequent award, must include with each delivery completed Material Safety
Data Sheets (MSp8) for each hazardous material. Additionally, each containerof'hazardous material
must be appropriatelyiabeled with: the identity of the hazardous material, appropriate hazardous,
wamings, and the Name and Address of the chemical manufacturer, imptoper, or other responsible
party: Labor and Industries may levy appropriate fines against employers for noncompliance and
agencies may withhold payment pending receipt of a legible copy ofthe MSDS. OSHA Form 20 is not
22 of 24 McKinstry Essention Inc. ESCO Contract
Vendor Contract #0000001961 .
Attachment #1
aceeptable in lieu of this requirement unless it is modified fo inGude appropriate information relative to
"carcinogenic.ingredients: and °routes of entry" ofithe product(s) in question.
56. Miscellaneous Provisions:
A. Amendments: No modfication of this Contract shall be effective unless in writing and signed by an authorized representative of each of the parties hereto, except as othervvise authorized.herein.
B. Conflict: In the event of conflict between contract documents and;.applicable iaws, codes,
ordinances or regulations, the most stringent or legally binding requirement shall govem and be
considered a part of this contract-to afford Seattle the maximum benefifs.
C. Liens. Claims and Encumbrances: All materials, equipment, oc services shall be free of all liens,
claims or encumbrances of any kind and if Seattle requests a formal release of same:shall be
delivered to Seattle. D. Bindina Gontract: This Contract shall not be binding until signed byboth parties. The provisions,
covenants and conditions'in this Contract shall bind the parties; their legal heirs, representatives, '
successors, and assigns.
E. Aqqlicable LawNenue: This Contract shall be construed and interpreted'in accordance with the
laws of the State of Washington. The venue of any action brought hereunder shall be in the
Superior Court for King County, Washington
F. Remedies Cumulative: Rights under this Contract are cumulative and nonexclusive of any other
remedy at law or in equity.
G. Captions: All titles, including sections or subsections, are for convenience only and do not define
or limit the contents. -
H. Severabilitv: Any term or provision of this Contract found to be prohibited by law shall be
ineffective to fhe extent of such prohibition without invalidating the remainder of the Contract.
1. Waiver: No covenant, term or condition.or the breach thereof shall be deemed waived, except by
written consent of the party against whom the waiver is claimed, and any waiver of the breach of
any covenant, term oc condition shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other covenant,.term or condition. Neither the acceptance
by Seattle of any performance by the Contractor after the time the same shall have become due
nor payment to the Contractor for any portion of the Work shall constitute a waiver by Seattle of
the bre.ach or default ofiany covenant, term or condition unless otherwise this is expressly agreed
to by Seattle, in writing. The Cit)(s failure to insist on performance of any of the terms or
conditions :herein or to exercise any right or privilege or the City's waiver of any breach hereunder
shall not thereafter waive any other term, condition, or priVilege, whether of the same or similar
tYPe•
J. Entire Contract: This document, along with any attachments and work orders, constitutes the
entire agreement between the parties with respect to the Work. No verbal agreement or
conversation between any officer, agent, associate or employee of Seattle and any officer,
agency, employee or associate of the Contracfor priorfo the execution of this Contract shall affect
or modify any of the terms or obligations contained in this Gontract.
K. Neaotiated Contract: The parties acknowledge that this is a negotiated Contract, that they have
had the opportunity to have this Contract reviewed by their respective legal counsel, and that the
terms and conditions of this Gontract:are not to be consfrued against any party on the basis of
such party's draftsmanship thereof.
23 of 24 " McKinstry Essention Inc. ESCO Contract
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Attachment #1
L. No personal liabilNo officer, agent or authorized employee of the City shall be personally
' responsible for any liability arising under this Contract, whether expressed orimptied, nor for any
statement or representation made herein or in any connection with this Contract.
IN WITNESS WHEREOF,:in consideration of the terms, conditions, and covenants contained herein, or
attached and incorpqrated and made a part hereof; the parties have executed this Contracf by having their
authorized representatives affix their signatures below.
~ : , ; . _
rv_
McKinstry Essention, Inc. City.of Seattle
;
By . By
Signature Date Signature Date
(Rrinted Name) - NANCY LOCKE, Purchasing Manager
Title ~
24 of 24 ' McKinstry Essention Inc. ESCO Contract