Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2009-187 Motorola Contract
BILL N0.2009-187 ORDINANCE N0.2009-187 AN ORDINANCE AUTHORIZING THE MAYOR TO SIGN A CONTRACT FOR EQUIPMENT AND SERVICES AND A SOFTWARE LICENSE AGREEMENT WITH MOTOROLA, INC. TO PROVIDE FOR THE PURCHASE OF A P-25 COMPLIANT RADIO NETWORK WHEREAS, it is necessary to purchase a new communications system to provide for adequate emergency communication for police and fire protection; and WHEREAS, it is desirable to purchase a system that will be compatible with a regional communications system in the greater Kansas City area; and WHEREAS, Motorola is a sole source supplier to provide such a compatible system; and NOW, THEREFORE, be it ordained by the Board of Aldermen of Riverside, Missouri as follows: 1. The Mayor is hereby authorized to sign in behalf of the City the attached contract for equipment and service and software license agreement with Motorola, Inc. to purchase a P-25 Compliant Radio Network service for a maximum sum of $3,381,000. 2. This Ordinance shall be in full force and effect immediately upon passage. ADOPTED AND APPRO D by the Board f Alderm n d Mayor of the City of Riverside, Missouri, this day of I~D~N~t~l , 2009. APP VED: l,C(,(ivt/O OR ATE ity Clerk CONTRACT FOR EQUIPMENT d SERVICE8 d ed h' %~ of 20~ between PARTI SPECIAL AND STANDARD TERMS AND CONDITIONS THIS CONTRACT is at t to ay The City of Riverside, Missouri a municipal corpo tion (City), and MOTOROLA, INC. (Contractor), whereby . . Contractor shall provide P-25 compliant radio network servtces to the City in accordance with the terms and condtUons contained in this contract. SPECIAL TERMS AND CONDITIONS Sec. 1. Work to bs Performed. Contractor shall perform the work and supply the goods, equipment or services specified in Attachment I, SpecificatioNScope of Work and any addenda thereto attached heroto and incorporated into this Contract. Sec. 2. Compensation. A. The maximum amount that City shall pay Contractor under this Contract is x3,381,000.00. B. Contractor will bill the City, in a form acceptable to the City, on the following basis: As per the milestones described in Attachment 7. C. It shall be a condition precedent to payment of any invoice from Contractor that Contractor is in compliance with, and not in breach or default of, all terms, covenants and conditions of this Contract. If damages are sustained by City as a result of breach or default by Contractor, City may wiU~hold payment(s) to Contractor for the purpose of set off until such time as the exact amount of damages due City from Contractor may be determined. D. No request for payment will be processed unless the request is in proper form as described in this contract and its attachments, correctly computed, and is approved as payable under the terms of this Contract. E. City is not liable for any obligation incurred by Contractor except as approved under the provisions of this Contract. Sec. 3. Merger. This Contract consists of Part I, Special Terms and Conditions and any Attachments and any documents incorporated by reference; and Part II, Standard Terms and Conditions. This Contract, including any Attachments and incorporated documents, constitutes the entire agreement between City and Contractor with respect to this subject matter. Sec. 4. Conflict Between Contract Parts. In the event of any conflict or ambiguity between the Special and Standard Contract Terms and Conditions of Part I and the General Conditions of Part II of this Contract, Part I will be controlling. In the event of any conflict or ambiguity between Parts I and II of this Contract and any Attachment to this Contract, Parts I and II will be controlling. Gen. Service Contract Part 1070809 1 of 6 Contract Central Sec. 5. Contract Attachments. The following documents are Attachments to this Contract and are attached hereto and incorporated herein by this reference: Attachment 1-Statement of Work Attachment 2- System Description Attachment 3-Coverage Acceptance Test Plan Attachment 4- Project Plan Attachment 5-Intentionally Deleted Attachment 6- Pricing Detail Attachment 7- Payment Plan and Milestone Breakdown Attachment 8- Responsibility Matrix Attachment 9-Intentionally Deleted Attachment 10- Site Documentation Matrix Attachment 11-Intentionally Deleted Attachment 12-Subscriber Unit Price List Attachment 13-Intentionally Deleted Attachment 14-Intentionally Deleted Attachment 15-Intentionally Deleted Attachment 16-Intentionally Deleted Attachment 17-City Support Escalation Procedures Attachment 18-Intentionally Deleted Attachment 19- ESS Attachment 20- RESERVED Insurance Certificate Attachment 21-RESERVED- Performance Bond Attachment 22- RESERVED- Payment Bond Attachment 23-Intentionally Deleted Sec. 6. Intentionally Struck Sec. 7. Term. This Contract shall begin on the date of execution and shall terminate one year from such date of execution. The City is granted the option of four annual Contract renewals whereby the terms of this Contract could be renewed for a period of up to one year by Amendment. Sec. 8. Software Licensing Agreement. The parties shall enter into a Software Licensing Agreement for the license of software for this project, and it is the intention of the parties that the execution of such Licensing Agreement be contemporaneous, or nearly contemporaneous, with the execution of this Contract. STANDARD TERMS AND CONDITIONS Sec. 9. IndependentContractor. Contractor is an independent contractor and is not City's agent. Contractor has no authority to take any action or execute any documents on behalf of City. Gen. Service Contract Part 1070809 2 of 6 Contrail Central Sec. 10. Compliance with Laws. Contractor shall comply with all federal, state and local laws, ordinances and regulations applicable to the work and this Contract. Sec. 11. Waiver or Modification. A. Except as specifically provided in this Contract, no provision of this Contract may be waived, modified or amended except in writing signed by City. B. If the City shall waive any provision of this Contract, it shall not operate as the City's waiver of the Contractor's subsequent breach or noncompliance with the provision. City shall be entitled to invoke any contractual or legal remedy available to City despite any of the City's previous waiver(s) of the Contractor's breach or noncompliance with the Contract provisions. Sec. 12. Headings; Construction of Contract. The headings of each section of this Contract are for reference only. Unless the context of this Contract clearly requires otherwise, all terms and words used herein, regardless of the number and gender in which used, shall be construed to include any other number, singular or plural, or any other gender, masculine, feminine or neuter, the same as if such words had been fully and properly written in that number or gender. Sec. 13. Severability of Provisions. Except as specifically provided in this Contract, all of the provisions of this Contract shall be severable. If any provision of this Contract is found by a court of competent jurisdiction to be unconstitutional or unlawful, the remaining provisions of this Contract shall be valid unless the court finds that the valid provisions of this Contract are so essentially and inseparably connected with and so dependent upon the invalid provision(s) that it cannot be presumed that the parties to this Contract could have included the valid provisions without the invalid provision(s); or unless the court finds that the valid provisions, standing alone, are incapable of being performed in accordance with the intentions of the parties. Sec. 14. City's Buy American and Missouri Preference Policies. Pursuant to Section 71.140 RSMo., preference shall be given to materials, products, supplies and all other articles produced, manufactured, made or grown within the State of Missouri. Sec. 15. Rules of Contract Construction. City and Contractor agree that this Contract shall be construed without regard to any presumption or other rule requiring construction of the Contract against the party causing the contract to be drafted. Sec. 16. Extension of Contract Term. City shall have a unilateral right to extend the term of this Contract beyond the expiration of the initial contract term and all contract renewal terms until the City has executed a new contract. Sec. 17. Employee Eligibility Verification. A. Contractor shall execute and submit an affidavit, in a form prescribed by City, affirming that Contractor does not knowingly employ any person in connection with the contracted services who does not have the legal right or authorization under federal law to work in the United States as defined in 8 U.S.C. § 1324a(h)(3). B. Contractor shall attach to the affidavit documentation sufficient to establish Contractor's enrollment and participation in an electronic verification of work program operated by the United States Department of Homeland Security(E-Verify) or an equivalent federal work authorization program authorized by the United States Department of Homeland Security to verify information of newly hired employees, under the Immigration Reform and Control Act of 1986. Gen. Service Contract Part 1010809 3 of 6 Contrail Central C. Contractor may obtain additional information about E-Verify and enroll at www.dhs.aov/xarevorotlprogram/gc_1185221678150shtm .For those Contractors enrolled in E-Verify, the first and last pages of the E-Verify Memorandum of Understanding that Contractor will obtain upon successfully enrolling ion the program shall constitute sufficient documentation for purposes of complying with this Section. Contractor shall submit the affidavit and attachments to City prior to execution of the Contract, or at any point during the term of the Contract if requested by City. Sec.18. Invoicing and Payment. Motorola will submit invoices to City according to the schedule in Attachment 7. Except for a payment that is due on the Effective Date, City will make payments to Motorola within forty-five (45) days after the date of each invoice. City will make payments when due in the form of a wire transfer, check, or cashier's check from a U.S. financial institution. Overdue invoices will bear simple interest at the maximum allowable rate. For reference, the Federal Tax Identification Number for Motorola, Inc. is 36-1115800. A reduction in Software or Equipment quantities, or services, may affect the overall Contract Price, including discounts if applicable. Sec. 19 Final Payment A. Application for Payment 1. After CONTRACTOR has completed all work and delivered in accordance with the Contract Documents all required maintenance and operating instructions, schedules, guarantees, Bonds, certificates or other evidence of insurance, certificates of inspection, marked-up record documents (as provided in Paragraph 6.13) and other documents, CONTRACTOR may make application for final payment following the procedure for progress payments. 2. The final Application for Payment shall be accompanied (except as previously delivered) by: a. all documentation required by the Contract Documents, including but not limited to the evidence of insurance required by Subparagraph 5.04 6.7; b. Intentionally Deleted c. 01290.14 "Contractor 01290.15 "Subcontractor regardless of tier. Affidavit for Final Payment" from CONTRACTOR and Affidavit for Final Payment" from all Subcontractors, Gen. Service ConUaq Part 1070809 4 of 6 ConUacl Central B. Review of Application and Acceptance 1. If, on the basis of CITY's Representative's observation of the Work during construction and final inspection, and CITY's Representative's review of the final Application for Payment and accompanying documentation as required by the Contract Documents, CITY's Representative is satisfied that the Work has been completed and CONTRACTOR's other obligations under the Contract Documents have been fulfilled, CITY's Representative will, within ten (10) days after receipt of the final Application for Payment, indicate in writing CITY's Representative's recommendation of payment and present the Application to CITY for payment. At the same time CITY will also give written notice to CONTRACTOR that the Work is acceptable subject to the provisions of this Contract. 2. Otherwise, CITY will return the Application to CONTRACTOR, indicating in writing the reasons for refusing to recommend final payment, in which case CONTRACTOR shall make the necessary corrections and resubmit the Application to CITY. After the presentation to CITY of the Application and accompanying documentation, in appropriate form and substance, including applicable federal and state prevailing wage provisions, the amount will become due and will be paid by CITY to CONTRACTOR in accordance with Laws and Regulations. Sec. 20 Title 1. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the invoices. Title to the Equipment will pass to City upon shipment. Title to Software will not pass to City at any time. Risk of loss will pass to City upon delivery of the Equipment to the custody of City at the City-designated site in accordance with the City's instructions. Motorola will pack and ship all Equipment in accordance with good commercial practices. 2. The City of Riverside, MO, 2990 Northwest Vivion Road, Riverside, MO 64150, is the ultimate destination where the Equipment will be delivered to the Owner. 3. Owner may change this information by giving written notice to Motorola. 4. The Ship-to address is: Motorola, Inc. c/o COMMENCO 4901 Bristol Avenue Kansas City, MO 64129 THIS CONTRACT CONTAINS AN INDEMNIFICATION PROVISION Business Entity Type: (~ Missouri Corporation CONTRACTOR Gen. Service Contract Part 1070809 5 of 6 Contract Central (~ Foreign Corporation (~ Fictitious Name Registration (~ Sole Proprietor (~ Limited Liability Company (~ Partnership (~ Joint Venture (~ Other (Specify) (Affix Corporate Seal) I hereby certify that I have authority to execute this document on behalf of Contractor Contractor: foTo - C. By: I Title: VYl 55 L ~ i CC' ~'z°S i~t'~tit Date: ] Z ' J ~ ~0 ~ DA n~ e l ~~ ,~el~ h~ `'~ CITY OF RIVERSIDE, MISSOURI ey: ~ Date: ~o~ -~~~-~q' Reviewed by: Approved to fo%~ rr~ ~ ~~, _~ ~/~~~ 6 of 6 PART II GENERAL CONDITIONS TABLE OF CONTENTS ARTICLE 1 DEFINITIONS AND TERMINOLOGY 1.01 Defined Terms 1.02 Terminology ARTICLE 2 PRELIMINARY MATTERS 2.01 Delivery of Bonds 2.02 Evidence of Insurance 2.03 Copies of Documents 2.04 Commencement of Contract Times; Notice to Proceed 2.05 Starting the Work 2.06 Before Starting Construction 2.07 Initially Acceptable Schedules ARTICLE 3 CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Intent 3.02 Reference to Standards and Specifications of Technical Societies 3.03 Reporting and Resolving Discrepancies 3.04 Amending and Supplementing Contract Documents 3.05 Reuse of Documents 3.06 Additional Equipment or Software; Maintenance ARTICLE 4 AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands 4.02 Subsurface and Physical Conditions 4.03 Differing Subsurface or Physical Conditions 4.04. Physical Conditions -Underground Facilities 4.05 Reference Points 4.06 Asbestos, Lead-Based Paint, PCBs, Petroleum, Hazardous Waste or Radioactive Material 4.07 Sites and Sits Conditions ARTICLE 5 BONDS AND INSURANCE 5.01 Performance, Payment and Other Bonds 5.02 Licensed Sureties and Insurers 5.03 Certificates of Insurance 5.04 CONTRACTOR's Liability Insurance 5.05 CITY's Liability Insurance 5.06 Property Insurance 5.07 Waiver of Rights 5.08 Receipt and Application of Insurance Proceeds 1- of 64 5.09 Partial Utilization -Property Insurance ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES 6.01 Indemnification 6.02 Supervision and Superintendence 6.03 Services, Working Hours, Labor, Materials and Equipment 6.04 Progress Schedule 6.05 Recovery Schedules 6.06 Substitutes and "Or-Equal" Items 6.07 Concerning Subcontractors, Suppliers and Others 6.08 Patent Fees and Royalties ~ 6.09 Permits 6.10 Laws or Regulations 6.11 Taxes 6.12 Use of Site and Other Areas 6.13 Record Documents 6.14 Safety and Protection 6.15 Safety Representative 6.16 Hazard Communication Programs 6.17 Emergencies 6.18 Shop Drawings and Samples 6.19 Continuing the Work 6.20 CONTRACTOR'S General Warranty and Guarantee ARTICLE 7 OTHER WORK 7.01 Related Work at Site 7.02 Coordination ARTICLE 8 CITY'S RESPONSIBILITIES 8.01 Communications to CONTRACTOR 8.02 Intentionally Struck 8.03 Furnish Data and Prompt Payment 8.04 Lands and Easements; Reports and Tests 8.05 Insurance 8.06 Change Orders 8.07 Inspections, Tests and Approvals 8.08 Limitations on CITY's Responsibilities 8.09 Undisclosed Hazardous Environmental Condition 8.10 Evidence of Financial Arrangements 8.11 CITY'S Representative 8.12 Visits to Site ARTICLE 9 Subscriber Quality Testing ARTICLE 10 CHANGES IN THE WORK 10.01 Authorized Changes in the Work 10.02 Unauthorized Changes in the Work 10.03 Execution of Change Orders 10.04 Notification to Surety ARTICLE 11 CHANGE OF CONTRACT PRICE 11.01 Change of Contract Price 11.02 Cost of the Work 11.03 Cash Allowances 11.04 Unit Price Work Page-2-o(64 ConUad CenUal 11.05 Dispute Resolution ARTICLE 12 CONTRACT TIMES 12.01 Time of the Essence 12.02 Change of Contract Times 12.03 Proof Required To Justifiy an Extension of Time for Excusable and Compensable Delays 12.04 Delays within CONTRACTOR's Control 12.05 Delays Beyond the CITY's and CONTRACTOR'S Control 12.06 Delay Damages 12.07 Dispute Resolution ARTICLE 13 TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 13.01 Access to Work 13.02 Tests and Inspections 13.03 Notice of Defects 13.04 Uncovering Work 13.05 CITY May Stop the Work 13.06 Correction or Removal of Defective Work 13.07 Correction Period 13.08 Acceptance of Defective Work 13.09 CITY May Correct Defective Work 13.10 System Acceptance ARTICLE 14 PAYMENTS TO CONTRACTOR AND COMPLETION 14.01 Invoicing and Payment 14.02 Title 14.03 Substantial Completion 14.04 Partial Utilization 14.05 Final Inspection 14.06 Final Payment 14.07 Final Completion Delayed 14.08 Waiver of Claims 14.09 Completion of Work by CITY 14.10 Training ARTICLE 15 SUSPENSIONS OF WORK AND TERMINATION 15.01 CITY May Suspend Work 15.02 CITY May Terminate for Default 15.03 CITY May Terminate for Convenience ARTICLE 16 CLAIMS AND DISPUTES 16.01 Definition 16.02 Written Notice and Burden of Proof 16.03 Time Limits on Claims 16.04 Continuing Contract Performance 16.05 Injury or Damage to Person or Property 16.06 Initial Resolution of Claims and Disputes 16.07 Final Resolution of Claims and Disputes ARTICLE 17 MISCELLANEOUS 17.01 Giving Notice 17.02 Computation of Times 17.03 Cumulative Remedies Page - 3 - of 64 Contract Central 17.04 Survival of Obligations 17.05 Controlling Law 17.06. Assignability and Subcontracting 17.07. Entire Agreement 17.08. Authority to Execute Agreement 17.09 Confidentiallnformation 17.10. Preservation of CONTRACTOR'S Proprietary Rights 17.11 Limitation of Liability ARTICLE 1 DEFINITIONS AND TERMINOLOGY 1.01 Defined Terms A. Wherever used in these General Conditions or in the other Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof: 1. Acceptance Tests -Tests described in the Acceptance Test Plan. 2. Addenda -Written or graphic instruments issued prior to the opening of Bids that clarify, correct or change the Bidding Requirements or the Contract Documents. 3. Agreement- The written Contract between CITY and CONTRACTOR governing the Work to be performed; other Contract Documents are attached to the Agreement and made a part thereof as provided therein. 4. Asbestos -Any material that contains more than one percent (1%) Asbestos and is friable or is releasing Asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 5. Bid- The offer or proposal of the Bidder submitted on the Bid Form/Contract setting forth the prices for the Work to be performed. A Bidder's Bid becomes a Contract with CITY if the CITY executes the Bid FormlContract submitted. by Bidder. If the CITY executes the Bid Form/Contract submitted by Bidder, the term "Bidder" shall mean CONTRACTOR. 6. Bidder- One who submits a Bid directly to CITY, as distinct from asub-bidder who submits a bid to a Bidder. If the CITY executes the Bid Form/Contract submitted by Bidder, the term "Bidder" shall mean CONTRACTOR in both the Bidding Documents and Contract Documents unless the context clearly indicates otherwise. 7. Bidding Documents- The advertisement or Invitation to Bid, Instructions to Bidders, the Bid Form/Contract, and the proposed Contract Documents (including all Addenda issued prior to receipt of Bids). 8. Bidding Requirements- The advertisement or invitation to bid, Instructions to Bidders, Bid security, and the Bid Form/Contract with any supplements. 9. Bonds- Payment Bond and Performance and other instruments of security. 10. Calendar Day- Any day shown on the calendar, including Saturdays, Sundays, and holidays. 11. Change Order- A written document issued by CITY that authorizes an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Contract. 12. CITY/OWNER - The City of Riverside, Missouri, a municipal corporation, with which CONTRACTOR has entered into the Contract and for whom the Work is to be provided. 00700 ConsUuction General Conditbns 073009 Page - 4 - o(64 ConUact Central 13. CITY's Representative- Person or agency designated to act for the Director as provided in these Contract Documents. 14. Confidential Information -Any information that is disclosed in written, graphic, verbal, or machine-recognizable form, and is marked, designated, or identified at the time of disclosure as being confidential or its equivalent; or if the information is in verbal form, it is identified as confidential at the time of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information does not include any information that: is or becomes publicly known through no wrongful act of the receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any obligation restricting disclosure; is independently developed by the receiving Party without breach of this Agreement; or is explicitly approved for release by written authorization of the disclosing Party. 15. Consultant Person, firm or corporation having a contract with CITY to furnish services as an independent professional associate or Consultant with respect to the Project and who is identified as such. The Consultant(s) is identified and their seals affixed on the Certification Page(s). The certifications describe the respective responsibilities for the Drawings and Specifications prepared by the Consultant(s) and are incorporated into this Contract. 16. Contract- The entire and integrated written agreement between CITY and CONTRACTOR concerning the Work that incorporates all Contract Documents. The Contract supersedes pr negotiations, representations, or agreements, whether written or oral. 17. Contract Documents- The Contract Documents establish the rights and obligations of the parties and include the Contract and the related Attachments. 18. Contract Price- The money payable by CITY to CONTRACTOR for completion of the Work in accordance with the Contract Documents as stated in the Agreement. 19. Contract Times- The number of days or the dates: (a) to achieve System Acceptance, and (b) to complete the Work so that it is ready for final payment as evidenced by CITY's Representative's written recommendation of final payment. 20. CONTRACTOR- The person, firm, partnership, company, corporation or association licensed or otherwise authorized by law to do business in Missouri, with whom CITY has entered into the Agreement. 21. Day- Shall constitute a Calendar Day. 22. Director- The term Director shall mean the the City Administrator. The Director is authorized to delegate this authority to a City employee so designated in writing. 23. Drawingsr The drawings which graphically show the scope, extent and character of the Work to be furnished and performed by CONTRACTOR and are included in the Contract Documents. Shop Drawings are not Drawings as so defined. 24. Effective Date of the Contract The date indicated in the Contract on which it becomes effective, but if no such date is indicated it means the date on which the Contract is fully executed by CITY. 25. Equipment -the equipment that Owner purchases from CONTRACTOR under this Contract. Equipment that is part of the System is described in the Contract Attachments. 26. Force Majeure - An event, circumstance, or act of a third party that is beyond a Party's reasonable control (e.g., an act of God, an act of the public enemy, an act of a government 00700 Constriction General Conditions 073009 Page - 5 - of 64 Contract Central entity, strikes or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots). 27. General Requirements- Sections of Division 1 of the Specifications. The General Requirements pertain to all sections of the Specifications. 28. Hazardous Envfronmental Condition- The presence at the Site of Asbestos, Lead- Based Paint, PCBs, Petroleum, Hazardous Waste, or Radioactive Material in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 29. Hazardous Waste- The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 8903) as amended from time to time. 30. Infringement Claim - A third party claim alleging that the Equipment manufactured by CONTRACTOR or the CONTRACTOR Software infringes upon the third party's United States patent or copyright. 31. Laws or Regulations- Any and all applicable laws, rules, regulations, ordinances, codes and orders of any and all governmental bodies, agencies, authorities and courts having jurisdiction. 32. Lead-Based Paint Any paint, varnish, stain, or other applied coating that has one (1) mg or more of lead per square centimeter. The terms "leaded paint" and "lead-containing paint" are synonymous with Lead-Based Paint. 33. Liens- Liens, charges, security interests or encumbrances upon real property or personal property. 34. Milestone- A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 35. Motorola Software -Software that CONTRACTOR or its affiliated company owns. 36. Non-Motorola Software -Software that another company manufactures and Motorola purchases and offers to the City pursuant to this Contract. City will not be required to execute any licenses for Non-Motorola Software. Upon detailed design review acceptance, Motorola will provide to City a list of third-party software applications for which shrink wrap licenses shall be provided to City upon System Acceptance. 37. Notice of Intent to Contract The written notice by CITY to the apparent successful Bidder stating that upon compliance by that apparent successful Bidder with the conditions in the Bid Documents enumerated, within the time specified, and upon enactment of an appropriate ordinance or resolution, CITY will sign and deliver the Contract. 38. Notice to Proceed -Execution of the Contract shall constitute a general Notice to Proceed for the work as a whole, and shall constitute an obligation for the Parties to commence executing their respective obligations under the Contract. Upon approval of the detailed design for each site, a separate Notice to Proceed shall be issued by the City for the civil construction portions of the Contract for the purpose of documenting agreement of the design for the construction items. This notice is the documentation to move forward with the construction tasks in the project schedule. The parties agree that this construction Notice to Proceed shall not be construed as a Contract contingency, but shall serve as a scheduling checkpoint. 39. Open Source Software (also called "freeware" or "shareware") -Software that has its underlying source code freely available to evaluate, copy, and modify. 40. Partial Utilization- Use by CITY of a substantially completed part of the Work for the purpose for which it is intended (or a related purpose) prior to Substantial Completion of all the Work. 00700 Construction General Conditions 073009 Page - 6 - of 64 Contrail Central 41. PCBs- Polychlorinated biphenyls. 42. Petroleum- Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-Hazardous Wastes and crude oils. 43. Project- The total construction of which the Work to be provided under the Contract Documents may be the whole, or a part as indicated elsewhere in the Contract Documents. 44. Project Manual- The documentary information prepared for bidding and constructing the Work. A listing of the contents of the Project Manual may be issued in one or more volumes and is contained in the table(s) of contents. 45. Proprietary Rights -The patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by CONTRACTOR under this Agreement and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by CONTRACTOR or another party. 46. Radioactive Material- Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 47. Samples- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 48. Shop Drawings- All drawings, diagrams, illustrations, schedules and other data or information which are specifically prepared or assembled by or for CONTRACTOR and submitted by CONTRACTOR to illustrate some portion of the Work. 49. Site- Lands or areas indicated in the Contract Documents as being furnished by CITY upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by CITY which are designated for the use of CONTRACTOR. 50. Software -The Motorola Software and Non-Motorola Software, in object code format that is furnished with the System or Equipment. 51. Specifications- Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work and certain administrative details applicable thereto. Specifications also means the functionality and performance requirements that are described in the Scope of Work. 52. Structural Analysis - An analysis by a registered professional engineer of the existing radio communications towers and their ability to accept new or additional antenna system loads. Such analysis includes, but is not limited to the following: the completion of calculations to determine whether an existing tower can support new, additive loads; the precise identification of the type and size of steel angle or rod members used in a tower's construction; the calculation of the stresses present in each rod member to assure that no single member is overstressed and likely to fail; the determination of the size of the existing concrete footings to see if there is a sufficient safety margin to prevent overturning in high winds (e.g. hurricanes); and, the development, if it is determined that a tower is of insufficient strength, of a set of modifications geared to bringing the existing tower into technical compliance. 53. Subcontractor- Any individual, firm, partnership, company, corporation or association licensed or otherwise authorized by law to do business in Missouri, to whom CONTRACTOR, with written notification to CITY, has entered into an agreement to perform a part of the Work. 00700 Construction General Conditions 073009 Page - 7 - of 64 Contract Central 54. Subscriber Qualify Testing- a randomly selected sample of devices purchased from the CONTRACTOR for the purpose of having such devices tested by an independent laboratory for CONTRACTOR published mil-specifications or certifications. The radios selected will include a battery and a charger for that specific model/application. 55. Subscriber Warranty Period - Alll subscribers ordered and shipped after System Acceptance shall be warranted for a period of one year from delivery. 56. Subsystem - a major part of the System that performs specific functions or operations. Subsystems are described in the Scope of Work. 57. Supplier- A manufacturer, fabricator, supplier, distributor, materialman or vendor having a direct contract with CONTRACTOR or with any Subcontractor to furnish materials or equipment to be incorporated into the Work by CONTRACTOR or any Subcontractor. 58. System -The Equipment, Software, and incidental hardware and materials that are combined together into an integrated system; the System is described in the Scope of Work. 59. System Acceptance -The Acceptance Tests have been successfully completed. 60. Underground Facilities- All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasements containing such facilities which have been installed underground to furnish any of the following services or materials: electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. 61. Unit Price Work- Work to be paid for on the basis of unit prices. 62. Warranty Period The warranty period is one (1) year. The warranty period will begin upon System Acceptance. 63. Work- The entire completed construction or the various separately identifiable parts thereof required to be furnished under the Contract Documents. Work includes and is the result of performing or fumishing labor, and furnishing and incorporating material and equipment into the construction, and furnishing documents, all as required by the Contract Documents. 64. Work Change Directive- A written directive to CONTRACTOR, issued on or after the Effective Date of the Contract, signed by CITY, ordering an addition, deletion or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed, or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times, but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 65. Work Day -Any day during which the CONTRACTOR is able to work a period of six (6) hours or more. Days that are not Work Days are days during which the CONTRACTOR is unable to work for a period of six (6) hours by reason of strikes, boycotts, labor disputes, embargoes, unusual delays in transportation or shortage of material, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, riots, rebellion, sabotage, or any other circumstances for which CONTRACTOR is not responsible or which is not within its control. Saturdays, Sundays, and holidays on which the CONTRACTOR's forces engage in Work requiring the presence of an inspector, will be considered as Work Days. 66. Written Amendment- A written statement modifying the Contract Documents, signed by CITY and CONTRACTOR on or after the Effective Date of the Contract and normally dealing with the non-engineering or non-technical rather than strictly construction-related aspects of the Contract Documents. 00700 ConsWc0on General Cond'dions 073009 Page - 8 - of 64 Contrail Central 1.02 Terminology A. Intent of Certain Terms or Adjectives 1. Whenever in the Contract Documents the terms "as ordered," "as directed," "as required," "as allowed," "as approved," or terms of like effect or import are used, or the adjectives "reasonable," "suitable," "acceptable," "proper" or "satisfactory" or adjectives of like effect or import are used to describe a requirement, direction, review or judgment as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate, in general, the completed Work for compliance with the requirements of and information in the Contract Documents and conformance with the design concept of the completed Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). B. Defective 1. The word "defective," when modifying the word "Work," refers to Work that is unsatisfactory, faulty or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or has been damaged prior to CITY's Representative's recommendation of final payment (unless responsibility for the protection thereof has been assumed by CITY at Substantial Completion). C. Furnish, Install, Perform, Provide 1. The word "furnish," when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition. 2. The word "install," when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words "perform" or "provide," when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use. 4. When "furnish," "install," "perform," or "provide" is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of CONTRACTOR, "provide" is implied. D. Unless stated otherwise in the Contract Documents, words and phrases which have a well-known technical or construction industry or trade meanings are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2 PRELIMINARY MATTERS 2.01 Delivery of Bonds A. CONTRACTOR shall deliver to CITY such Bonds as CONTRACTOR may be required to furnish. 2.02 Evidence of Insurance 00700 Construc0on General Conditions 073009 Page - 9 - of 64 Contrail Central A. CONTRACTOR shall deliver to CITY certificates of insurance or other evidence of insurance that CITY may request, which CONTRACTOR is required to purchase and maintain in accordance with Article 5 or any other applicable provision in the Contract Documents. 2.03 Copies of Documents A. CITY shall furnish to CONTRACTOR one (1) copy of the Drawings and Specifications, including addenda. 2.04 Commencement of Contract Times; Notice to Proceed A. The Contract Times will commence to run on the date indicated in the Notice to Proceed. 2.05 Starting the Work A. CONTRACTOR shall start to perform the Work on the date when the Contract Times commence to run, but no Work shall be done at the Site prior to the date on which the Contract Times commence to run, unless otherwise indicated in the Notice to Proceed. ARTICLE 3 CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Intent A. The Contract Documents comprise the entire Contract between CITY and CONTRACTOR concerning the Work. B. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be furnished and performed whether or not specifically called for at no additional cost to CITY. C. Correlation and intent of documents: The Drawings and Specifications are intended to supplement each other. Any Work shown on the Drawings and not mentioned in the Specifications (or vice versa) shall be as binding and shall be completed the same as if mentioned or shown on both. D. In the case of an inconsistency between Drawings and Specifications, the requirements of the Specifications shall govern. If Drawings are in conflict, larger scale details shall govern over smaller or no-scale Drawings. If Specification sections are in conflict with each other, the conflict shall be resolved by the parties in accordance with reasonable interpretation of such documents. E. The general character of the detailed Work is shown on the Drawings, but minor modifications may be made in the full size or scale details. Where the word "similar" occurs on the Drawings, it shall be used in its general sense and not as meaning identical, and all details shall be worked out in relation to their location and their connection to the other parts of the Work. Where on any Drawings a portion of the Work is drawn out and the remainder is indicated in outline, the parts drawn out shall apply also to all other like portions of the Work. Where ornaments or other details are indicated by starting only, such details shall be continued throughout the courses or parts in which they occur and shall also apply to all other similar parts in the Work, unless otherwise indicated. 3.02 Reference to Standards and Specifications of Technical Societies 00700 Construction General Conditions 073009 Page -10 - of 64 Contrail Central A. Reference to standards, specifications, manuals or codes of any technical society, organization or association, or to Laws or Regulations, whether such reference be specific or by implication, shall mean the latest standard, specification, manual, code or Laws or Regulations in effect at the time of opening of Bids (or on the date of CONTRACTOR's proposal if there are no Bids), except as may be otherwise specifically stated in the Contract Documents. 1. No provision of any such standard, specification, manual, code or instruction of Supplier shall be effective to change the duties or responsibilities of CITY, CONTRACTOR, or any of their Subcontractors, Consultants, agents, or employees from those set forth in the Contract Documents, nor shall it be effective to assign to CITY or any of their Consultants, agents or employees any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. 3.03 Reporting and Resolving Discrepancies A. Reporting Discrepancies: If, during the performance of the Work, CONTRACTOR discovers any conflict, error, ambiguity or discrepancy within the Contract Documents or between the Contract Documents and any provision of any Laws or Regulations applicable to the performance of the Work or of any standard, specification, manual, code or any instruction of any Supplier referred to in Paragraph 6.07, CONTRACTOR shall report it immediately to CITY in writing. CONTRACTOR shall not proceed with the Work affected thereby (except in an emergency as authorized by Paragraph 6.17) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in Paragraph 3.04; provided, however, that CONTRACTOR shall not be liable to CITY for failure to report any such conflict, error, ambiguity or discrepancy unless CONTRACTOR knew or reasonably should have known thereof. B. Resolving Discrepancies. The provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity or discrepancy between the provisions of the Contract Documents and: 1. The provisions of any standard, specification, manual, code or instruction (whether or not specifically incorporated by reference in the Contract Documents); or 2. The provisions of any Laws or Regulations applicable to the performance of the Work. 3.04 Amending and Supplementing Contract Documents A. The Contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: 1. A Written Amendment or 2. A Change Order (pursuant to Article 10), whether pursuant to a Work Change Directive or otherwise. B. The requirements of the Contract Documents may be supplemented and minor variations and deviations in the Work may be authorized, in one or more of the following ways: 1. CITY's approval of a Shop Drawing or Sample (pursuant to Paragraph 6.18), or 2. CITY's written interpretation or clarification (pursuant to Paragraph 9.03). 00700 Construction General Conditions 073009 Page -11- of 64 Contract Central 3.05 Reuse of Documents A. CONTRACTOR and any Sutxrantndor or Supplier or other person or organization performing or furnishing any of the Work under this Contract: 1. Shall not have or acquire any title to or ownership right ren ed by o bean gt the Specifcations or other documents (or copies of any thereof) p pa seal of Consultant, and 2. Shall not rouse any of such Drawings, Specifications, other documents or copies thereof on extensions of the Projsat or any other project without written consent of CITY, or Consultant, as applicable, and specific written verification ar adaptation by Consultant. This prohibition will survive final payment, completion, and acceptance of the Work, or termination or completion of the Contract. Nothing herein shall preclude CONTRACTOR from retaining copies of the Contract Documents for record purposes. 3.06 Additional Equipment or 8oRwan; Maintenance A. Additional Equipment or Softwaro. For three (3) years after the Effective Date, CITY may order additional Equipment or Software if it is then available. Each order must refer to this Agreement and must apecity the pricing and delivery terms. Noiwithatanding any additional or contrary terms in the order, the applicable provisions of this Agreement (except for pricing, delivery, passage of title and risk of loss to Equipment, warranty commencement, and payment terms) will govern the purchase and sale of the additional Equipment or Software. Title to the Equipment will pass to City upon shipment. Title to SofNvaro will not pass to City at any time. Risk of loss will pass to City upon delivery of the Equipment to the custody of City at the City- designated site in accordance with the City's instructions. Warranty will commence upon delivery, and payment is due within forty-five (45) days after the invoice date. CONTRACTOR will send CITY an invoice as the additional Equipment is shipped or Software is licensed. Altamativery, CITY may register with and place orders through CONTRACTOR Online ("MOL"), and this Agreement will be the "Underlying Agreement" for those MOL transactions rather than the MOL On-Line Terms and Conditions of Sale. MOL registration and other information may be found at htto~Nwww motorola com/businessandoovernment/ and the MOL telephone number is (800) 814-0601. B. Maintenance Service. During the Warranty Period, CONTRACTOR will provide maintenance services for the Equipment and support for the CONTRACTOR Software pursuant to this Agreement. Those services and support are included in the Contract Price. If CITY wishes to purchase additional maintenance and support services for the Equipment during the Warranty Period, or any maintenance and support services for the Equipment after the Warranty Period, the description of and pricing for the services will be set forth in a separate document. If CITY wishes to purchase extended support for the CONTRACTOR Software after the Warranty Period, it may do so by ordering software subscription services. Unless otherwise agreed by the parties in writing, the terms and conditions applicable to the maintenance, support or software subscription services will be CONTRACTOR'S standard Service Terms and Conditions, together with the appropriate statements of work. C. CONTRACTOR Software. Any CONTRACTOR Software, including subsequent releases, is licensed to CITY solely in accordance with the Software License Agreement. CITY hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement. D. Non-CONTRACTOR Software. Any Non-CONTRACTOR Software is licensed to CITY Contract Central 00700 ConsWction General Conditions 073009 Page -12 - of 64 in accordance with the standard license, terms, and restrictions of the copyright holder on the Effective Date unless the copyright holder has granted to CONTRACTOR the right to sublicense the Non-CONTRACTOR Software pursuant to the Software License Agreement, in which case it applies and the copyright holder will have all of Licensor's rights and protections under the Software License Agreement. CONTRACTOR makes no representations or warranties of any kind regarding Non-CONTRACTOR Software. Non-CONTRACTOR Software may include Open Source Software. All Open Source Software is licensed to CITY in accordance with, and CITY agrees to abide by, the provisions of the standard license of the copyright CITY and not the Software License Agreement. Upon request by CITY, CONTRACTOR will use commercially reasonable efforts to determine whether any Open Source Software will be provided under this Agreement; and if so, identify the Open Source Software and provide to CITY a copy of the applicable standard license (or specify where that license may be found); and provide to CITY a copy of the Open Source Software source code if it is publicly available without charge (although a distribution fee or a charge for related services may be applicable). City will not be required to execute any additional licenses for Non-Motorola Software. Upon detailed design review acceptance, Motorola will provide to City a list of third-party software applications for which shrink-wrap licenses shall be provided to City upon System Acceptance. E. Substitutions. At no additional cost to CITY, CONTRACTOR may substitute any Equipment, Software, or services to be provided by CONTRACTOR, if the substitute meets or exceeds the Specifications and is of equivalent or better quality to the CITY. Any substitution will be reflected in a change order. F. Optional Equipment or Software. This paragraph applies only if a "Priced Options" exhibit is shown in this Agreement, or if the parties amend this Agreement to add a Priced Options exhibit. During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one (1) year after the Effective Date), CITY has the right and option to purchase the equipment, software, and related services that are described in the Priced Options exhibit. CITY may exercise this option by giving written notice to Seller which must designate what equipment, software, and related services CITY is selecting (including quantities, if applicable). To the extent they apply, the terms and conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain provisions must be agreed upon, and they agree to negotiate those in good faith promptly after CITY delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules, payment terms, maintenance and support provisions, additions to or modifications of the Software License Agreement, hosting terms, and modifications to the acceptance and warranty provisions. ARTICLE 4 AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands A. CITY shall furnish the Site. CITY shall identify any encumbrances or restrictions not of general application but specifically related to use of lands so furnished with which CONTRACTOR will have to comply in performing the Work. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by CITY, unless otherwise provided in the Contract Documents. If CONTRACTOR and CITY are unable to agree on entitlement to or the amount or extent of any adjustments in the Contract Price or the Contract Times or both as a result of any delay in CITY's furnishing these lands, rights-of- way or easements, CONTRACTOR may make a Claim as provided in Article 16. 00700 Constnic0on General Conditions 073009 Page -13 - of 64 Contract Central CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 4.02 Subsurface and Physical Conditions A. Reports and Drawings: Reference is made to the Contract for identification of, if any: 1. Subsurface Conditions: Those reports of explorations and tests of subsurface conditions at or contiguous to the Site that have been utilized by CITY in preparing the Contract Documents; and 2. Physical Conditions: Those drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) that have been utilized by CITY in preparing the Contract Documents. B. Limited Reliance by CONTRACTOR on Technical Data Authorized: CONTRACTOR may rely upon the general accuracy of the technical data contained in reports and drawings of subsurface or physical conditions, but such reports and drawings are not Contract Documents.. Except for reliance on such technical data, CONTRACTOR may not rely upon or make any Claim against CITY or any Consultant with respect to: 1. The completeness of such reports and drawings for CONTRACTOR's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by CONTRACTOR and safety precautions and programs incident thereto; or 2. Other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings, or 3. Any CONTRACTOR interpretation of or conclusion drawn from any technical data or any such other data, interpretations, opinions or information. 4.03 Differing Subsurface or Physical Conditions A. Notice of Differing Subsurface or Physical Conditions. If CONTRACTOR believes that any subsurface or physical condition at or contiguous to the Site that is uncovered or revealed either: 1. Is of such a nature as to establish that any technical data on which CONTRACTOR is entitled to rely as provided in Paragraphs 4.02 A and 4.02 B is materially inaccurate; or 2. Is of such a nature as to require a change in the Contract Documents; or 3. Differs materially from that shown or indicated in the Contract Documents; or 4. Is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.17), notify CITY in writing about such condition(s). CONTRACTOR shall not further disturb such conditions or perform any Work in connection therewith (except as aforesaid) until receipt of written order to do so. 00700 Constriction General Cond'dions 073009 Page -14 - of fi4 Contrail Central B. After receipt of notice as required by Paragraph 4.03 A, CITY will promptly review the pertinent conditions, determine the necessity to obtain additional exploration or tests with respect thereto and notify CONTRACTOR in writing of CITY's findings and conclusions. C. Possible Contract Documents Change: If CITY concludes that a change in the Contract Documents is required as a result of a condition that meets one or more of the categories in Paragraph 4.03 A, a Work Change Directive or a Change Order will be issued as provided in Article 10 to reflect and document the consequences of such change. D. Possible Price or Times Adjustments: An equitable adjustment in the Contract Price or in the Contract Times, or both, will be allowed to the extent that the existence of a subsurface or physical condition causes an increase or decrease in CONTRACTOR's cost of, or time required for, performance of the Work; subject, however, to the following: 1. The condition must meet any one or more of the categories described in Paragraphs 4.03 A.1 through 4.03 A.4, inclusive; 2. A change in the Contract Documents pursuant to Paragraph 4.03 C will not be an automatic authorization of, nor a condition precedent to, entitlement to any such adjustments; 3. With respect to Work that is paid for on a unit price basis, any adjustment in Contract Price will be subject to the provisions of Paragraphs 9.06 and 11.04; and 4. CONTRACTOR shall not be entitled to any adjustment in the Contract Price or Contract Times if; a. CONTRACTOR knew, or by the exercise of ordinary care could have known, of such conditions at the time CONTRACTOR made a final commitment to CITY with respect to Contract Price and Contract Times by the submission of a Bid; or b. The existence of such condition could reasonably have been discovered or revealed as a result of any examination, investigation, exploration, test or study of the Site and contiguous areas required by the Bidding Requirements or Contract Documents to be conducted by or for CONTRACTOR prior to CONTRACTOR's making such final commitment; or c. CONTRACTOR failed to give the written notice as required by Paragraph 4.03 A. E. If CITY and CONTRACTOR are unable to agree on entitlement to, or magnitude of, an equitable adjustment in the Contract Price pursuant to Article 11 and/or Contract Times pursuant to Article 12, a Claim may be made therefore as provided in Article 16. However, CITY and Consultants shall not be liable to CONTRACTOR for any costs, losses or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all other dispute resolution costs) sustainetl by CONTRACTOR on or in connection with any other project or anticipated project. 4.04. Physical Conditions -Underground Facilities A. Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the Site is based on information and data furnished to CITY by the owners of such Underground Facilities or by others. 1. CITY shall not be responsible for the accuracy or completeness of any such 00700 Construction General Conditions 073009 Page -15 - of 54 Contrail Central information or data; and 2. The cost of all of the following will be included in the Contract Price and CONTRACTOR shall have full responsibility for: a. reviewing and checking all such information and data, b. locating all Underground Facilities shown or indicated in the Contract Documents, c. coordination of the Work with the owners of such Underground Facilities during construction, and d. the safety and protection of all such Underground Facilities as provided in Paragraph 6.14 and repairing any damage thereto resulting from the Work. B. Not Shown or Indicated: If an Underground Facility is uncovered or revealed at or contiguous to the Site, and was not shown or indicated in the Contract Documents, or was shown or indicated incorrectly in the Contract Documents, CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.17), identify the owner of such Underground Facility and give written notice to that owner and to CITY. C. Intentionally Struck D. Possible Contract Documents Change: If CITY concludes that a change in the Contract Documents is required as a result of the existence of an Underground Facility that either was not shown, or was shown incorrectly, in the Contract Documents, a Work Change Directive or Change Order will be issued as provided in Article 10 to reflect and document the consequences of such change. E. Possible Price or Times Adjustments: An equitable adjustment in the Contract Price or in the Contract Times, or both, will be allowed to the extent that the existence of the Underground Facility causes an increase or decrease in CONTRACTOR'S cost of, or time required for, performance of the Work; subject, however, to the following: 1. a change in the Contract documents pursuant to Paragraph 4.04 D will not be an automatic authorization of, nor a condition precedent to, entitlement to any such adjustments; 2. with respect to Work that is paid for on a unit price basis, any adjustment in Contract Price will be subject to the provisions of Paragraphs 9.06 and 11.04; and 3. CONTRACTOR shall not be entitled to any adjustment in the Contract Price or Contract Times if; a. CONTRACTOR knew, or by the exercise of ordinary care could have known, of the existence of the Underground Facility at the time CONTRACTOR made a final commitment to CITY with respect to Contract Price and Contract Times by the submission of a Bid; or b. the existence of the Underground Facility could reasonably have been discovered or revealed as a result of any examination, investigation, exploration, test or study of the Site and contiguous areas required by the Bidding Requirements or Contract Documents to be conducted by or for CONTRACTOR prior to CONTRACTOR's 00700 Construction General Conditbns 073009 Page -16 - of 64 Contract Central making such final commitment; or c. CONTRACTOR failed to give the written notice as required by Paragraph 4.04 B. F. If CITY and CONTRACTOR are unable to agree on entitlement to, or magnitude of, an equitable adjustment in the Contract Price pursuant to Article 11 and/or Contract Times pursuant Article 12, a Claim may be made therefore as provided in Article 16. However, CITY and Consultants shall not be liable to CONTRACTOR for any costs, losses or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all other dispute resolution costs) sustained by CONTRACTOR on or in connection with any other projector anticipated project. 4.05 Reference Points A. CITY shall provide engineering surveys to establish reference points for construction that are necessary to enable CONTRACTOR to proceed with the Work. CONTRACTOR shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of CITY. CONTRACTOR shall report to CITY whenever any reference point or property monument is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel. 4.06 Asbestos, Lead-Based Paint, PCBs, Petroleum, Hazardous Waste or Radioactive Material A. Reports and Drawings: Reference is made to the Contract for the identification of those reports and drawings relating to a Hazardous Environmental Condition identified at the Site, if any, that have been utilized in the preparation of the Contract Documents. B. Limited Reliance by CONTRACTOR on Technical Data Authorized: CONTRACTOR may rely upon the general accuracy of the technical data contained in reports and drawings relating to a Hazardous Environmental Condition at the Site, but such reports and drawings are not Contract Documents. Except for such reliance on such technical data, CONTRACTOR may not rely upon or make any Claim against CITY or any Consultant with respect to: 1. The completeness of such reports and drawings for CONTRACTOR's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by CONTRACTOR and safety precautions and programs incident thereto; or 2. Other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings; or 3. Any CONTRACTOR interpretation of or conclusion drawn from any technical data or any such other data, interpretations, opinions or information. C. CONTRACTOR shall not be responsible for any Hazardous Environmental- Condition uncovered or revealed at the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. CONTRACTOR shall be responsible for all Hazardous Environmental Conditions created with any materials brought to the Site by CONTRACTOR, Subcontractors, Suppliers, or anyone else for whom CONTRACTOR is responsible. CONTRACTOR shall not be entitled to an extension of the Contract Times or an increase in the Contract Price if CONTRACTOR, Subcontractor, Supplier or anyone for whom CONTRACTOR is responsible created any Hazardous 00700 Construction General Conditions 073009 Page -17 - of ti4 Contract Central Environmental Condition at the Site or in connection with the Work. D. If CONTRACTOR encounters a Hazardous Environmental Condition at the Site or if CONTRACTOR or anyone for whom CONTRACTOR is responsible creates a Hazardous Environmental Condition at the Site, CONTRACTOR shall immediately: 1. Secure or otherwise isolate such condition; 2. Stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by Paragraph 6. 15); and 3. Notify CITY (and promptly thereafter confirm such notice in writing). CITY shall promptly determine whether to retain a qualified expert to evaluate such condition or take corrective action, if any. E. CONTRACTOR shall neither resume Work nor be required to resume Work in connection with such condition or in any affected area until after CITY has obtained any required permits related thereto and delivered to CONTRACTOR written notice: 1. Specifying that such condition and any affected area is or has been rendered safe for the resumption of Work; or 2. Specifying any special conditions under which such Work may be resumed safely. If CITY and CONTRACTOR cannot agree as to entitlement to or on the amount or extent, if any, of any adjustment in Contract Price pursuant to Article 11 and/or Contract Times to pursuant to Article 12 as a result of such Work stoppage or such special conditions under which Work is agreed to be resumed by CONTRACTOR, a Claim may be made therefore as provided in Article 16. F. If after receipt of written notice as required in Paragraph 4.06 E, CONTRACTOR does not agree to resume Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under special conditions specified in the notice, then CITY may order the portion of the Work that is in the area affected by such condition to be deleted from the Work. If CITY and CONTRACTOR cannot agree as to entitlement to or magnitude of an equitable adjustment in Contract Price pursuant to Article 11and/or Contract Times pursuant to Article 12 as a result of deleting such portion of the Work, then a Claim may be made therefore as provided in Article 16. CITY may have such deleted portion of the Work performed by CITY's own forces or others in accordance with Article 7. G. The provisions of Paragraphs 4.02, 4.03, and 4.04 are not intended to apply to a Hazardous Environmental Condition uncovered or revealed at the Site. H. All materials used, whether new or salvaged, shall be asbestos-free materials. CONTRACTOR shall immediately call to the attention of the CITY's Representative any specified material or product which the CONTRACTOR knows or suspects to contain asbestos, whether new or salvaged. 4.07 Sites and Site Conditions A. Access to Sites. In addition to its responsibilities described elsewhere in this Agreement, CITY will provide a designated project manager; and access to the work sites as reasonably requested by CONTRACTOR so that it may perform its duties in accordance with the Statement of Work. B. Site Conditions. CITY will ensure that all work sites it provides will be safe, secure, and 00700 ConsWcBon General Conditions 073009 Page -18 - of 64 Contract Central in compliance with all applicable industry standards. Site conditions have been inspected by the CONTRACTOR, and the Statement of Work and the Detailed Design Review lists the specific site requirements. Before installing the Equipment or Software at a work site, CONTRACTOR will inspect the work site and advise CITY of any apparent deficiencies or non- conformities with the requirements of this Subparagraph. This Agreement is predicated upon normal soil conditions as defined by the version of E.I.A. standard RS-222 in effect on the Effective Date. C. Site Issues. If a Party determines that the sites identified in this Agreement are no longer available or desired, or if subsurface, structural, adverse environmental or latent conditions at any site differ from those indicated in this Agreement, the Parties will promptly investigate the conditions and will select replacement sites or adjust the installation plans and specifications as necessary. If change in sites or adjustment to the installation plans and specifications causes a change in the cost or time to perform, the Parties will equitably amend the Contract Price, Performance Schedule, or both, by a change order. ARTICLE 5 BONDS AND INSURANCE 5.01 Performance, Payment and Other Bonds A. CONTRACTOR shall furnish a Payment Bond in an amount equal to the civil construction value of the Contract Price, as set out in the Contract Documents, as security for the faithful payment of all CONTRACTOR'S obligations under the Contract Documents. CONTRACTOR shall furnish a Performance Bond in an amount equal to the value of the System and civil construction, including all equipment and labor but excluding subscriber units, as security for the faithful performance of all CONTRACTOR's obligations under the Contract Documents. These Bonds shall remain in effect at least until one (1) year after the Warranty Period starts, except as provided otherwise by Laws or Regulations or by the Contract Documents. B. All Bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations. A certified copy of the agent's authority to act must accompany all Bonds signed by an agent. C. If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or becomes insolvent, or its right to do business is terminated in any state where any part of the Project is located or it ceases to meet the requirement of Paragraph 5.01 B, CONTRACTOR shall within twenty (20) days thereafter substitute another Bond and surety, both of which must be acceptable to CITY. 5.02 Licensed Sureties and Insurers A. All Bonds and insurance required by the Contract Documents to be purchased and maintained by CITY or CONTRACTOR shall be obtained from surety or insurance companies that are duly licensed in the State of Missouri and in the jurisdiction in which the Project is located, if not in Missouri, to issue Bonds or insurance policies for the limits and coverages so required. All surety and insurance companies shall hold an A.M. Best rating of B+, V, or better. The CONTRACTOR shall, within fifteen (15) business days after notice by the CITY, after contract signature, sign and deliver all bonds, certificates of insurance, and other required documents. 5.03 Certificates of Insurance 00700 Construc0on General Conditions 073009 Page -19 - of (i4 Contract Central A. CONTRACTOR shall deliver to CITY, prior to the start of any Work at the Project Site, properly completed certificates of insurance or other evidence that the required insurance is in full force and effect, in a form acceptable to CITY. B. All policies of insurance (and the certificates or other evidence thereof) required to be purchased and maintained by CONTRACTOR in accordance with Paragraphs 5.04 and 5.06 will contain a provision that the coverage afforded will not be canceled or changed or renewal refused until at least thirty (30) days prior written notice has been given to CITY and CONTRACTOR and to each other additional insured to whom a certificate of insurance has been issued and will contain waiver provisions in accordance with Paragraph 5.07 A. 5.04 CONTRACTOR's Liability Insurance A. CONTRACTOR shall purchase and maintain such liability and other insurance as is appropriate for the Work being performed and furnished, and will provide protection from claims set forth below which may arise out of or result from CONTRACTOR's performance and furnishing of the Work and CONTRACTOR'S other obligations under the Contract Documents, whether it is to be performed or furnished by CONTRACTOR or by anyone directly employed by any of them to perform or furnish any of the Work, or by anyone for whose acts any of them may be liable: 1. Claims under workers' compensation, disability benefits and other similar employee benefit acts; 2. Claims for damages because of bodily injury, occupational sickness or disease, or death of CONTRACTOR's employees; 3. Claims for damages because of bodily injury, sickness or disease, or death of any person other than CONTRACTOR'S employees; 4. Claims for damages insured by customary personal injury liability coverage; 5. Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefore; and 6. Claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. B. The policies of insurance so required by Paragraph 5.04 A, to be purchased and maintained shalt: 1. With respect to insurance required by Paragraphs 5.04 A.3 through 5.04 A.5 inclusive, include as additional insureds (subject to any customary exclusion for professional liability) CITY, Consultants and any other identified individuals or entities, and include coverage for the respective officers, directors, partners, employees, and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby; 2. Include at least the specific coverages and be written for not less than the limits of liability provided in Paragraph 5.04 C or required by Laws or Regulations, whichever is greater; 3. Include completed operations insurance; 00700 Constr~tion General Conditions 073009 Page - 20 - of 64 Contract Central 4. Include contractual liability insurance covering CONTRACTOR's indemnity obligations; 5. Contain a provision that the coverage afforded will not be canceled, changed or renewal refused until at least thirty (30) days prior written notice has been given to CITY, CONTRACTOR and to each other additional insured to whom a certificate of insurance has been issued (and the certificates of insurance furnished by the CONTRACTOR pursuant to Paragraph 5.03 will so provide); 6. Remain in effect at least until final payment and at all times thereafter when CONTRACTOR may be correcting, removing or replacing defective Work in accordance with Paragraphs 13.06 and 13.07; 7. With respect to completed operations insurance, remain in effect for at least two (2) years after final payment (and CONTRACTOR shall furnish CITY and each other additional insured to whom a certificate of insurance has been issued evidence satisfactory to CITY and any such additional insured of continuation of such insurance); 8. Contain across-liability or severability of interest clause. Insurance covering the specified additional insureds shall be primary insurance, and all other insurance carried by the additional insureds shall be excess insurance; 9. With respect to commercial automobile liability, commercial general liability, and umbrella liability insurance, CONTRACTOR shall require its insurance carrier(s) to waive all rights of subrogation against CITY, and CITY's officers, directors, partners, employees and agents; and 10. Contain a provision that the costs of providing the insureds a defense and appeal, including attorneys' fees, as insureds, shall remain the insurer's responsibility. C. Specific policies of insurance required by this Paragraph 5.04 shall include: 1. Workers' Compensation and Employers' Liability Insurance. This insurance shall protect CONTRACTOR against all claims under applicable state workers' compensation laws, including coverage as necessary for the benefits provided under the United States Longshoremen's and Harbor Workers' Act and the Jones Act. CONTRACTOR shall also be protected against claims for injury, disease, or death of employees which, for any reason, may not fall within the provisions of workers' compensation laws. This policy shall include an "all states" or "other states" endorsement. The liability limits shall be not less than: Workers' Compensation: Statutory Employers' liability: $1,000,000 each occurrence 2. Commercial Automobile Liability Insurance. This insurance shall be occurrence type written in comprehensive form and shall protect CONTRACTOR, CITY, and Consultants against all claims for injuries to members of the public and damage to property of others arising from the use of motor vehicles, either on or off the Project Site, whether they are owned, non-owned, or hired. The liability limits shall be not less than: $2,000,000 3. Commercial General Liability Insurance. This insurance shall be occurrence type written in comprehensive form acceptable to CITY. This insurance shall protect CONTRACTOR, CITY, and Consultants as additional insureds, against claims arising 00700 Constriction General Condftans 073009 Page - 21- of 64 Contras Central from injuries, sickness, disease, or death of any person or damage to property arising out of performance of the Work. The policy shall also include coverage for personal injury liability; contractual liability; completed operations and products liability; and for blasting, explosion, and collapse of buildings; and damage to underground property. The liability limits for bodily injury and property damage shall be not less than: $2,000,000 combined single limit for each occurrence $2,000,000 general aggregate. 4. The insurer's costs of providing the insureds a defense and appeal as additional insureds, including attorney's fees, shall remain the insurer's separate responsibility. 5.05 CITY's Liability Insurance A. In addition to the insurance required to be provided by CONTRACTOR under Paragraph 5.04, CITY, at CITY's option, may purchase and maintain at CITY's expense liability insurance that will protect CITY against claims which may arise from operations under the Contract Documents. 5.06 Property Insurance A. Unless otherwise provided in the Contract, CONTRACTOR shall purchase and maintain property insurance on the Work at the Site in the amount of the full replacement cost thereof (subject to such deductible amounts as may be provided in the Contract or required by Laws or Regulations). This insurance shall: 1. Include the interests of CITY, CONTRACTOR, Subcontractors, and any other identified persons or entities, each of whom is deemed to have an insurable interest and shall be listed as an insured or additional insured; 2. Be written on a Builder's Risk "all-risk" or open peril or special causes of loss policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, tornado, collapse, debris removal, demolition occasioned by enforcement of Laws or Regulations, water damage, damage caused by frost and freezing, and acts of God; 3. Be maintained in effect until final payment is made unless otherwise agreed to in writing by CITY with thirty (30) days written notice to each other additional insured to whom a certificate of insurance has been issued. B. CITY shall not be responsible for purchasing and maintaining any property insurance to protect the interests of CONTRACTOR, Subcontractors or others involved in the Work to the extent of any deductible amounts. The risk of loss within the deductible amounts will be borne by CONTRACTOR, Subcontractor or others suffering any such loss and if any of them wishes property insurance coverage within the limits of such amounts, each may purchase and maintain it at the purchaser's own expense. 5.07 Waiver of Rights A. CITY and CONTRACTOR intend that all policies purchased in accordance with Paragraphs 5.04 and 5.06 will protect CITY, CONTRACTOR, and all other identified persons or entities and will provide primary coverage for all losses and damages caused by the perils covered thereby. All such policies shall contain provisions to the effect that in the event of 00700 ConsWction General Conditions 073009 Page - 22 - of 64 Contract Central payment of any loss or damage the insurers will have no rights of recovery against any of the insureds or additional insureds thereunder. CITY and CONTRACTOR waive all rights against each other and their respective officers, directors, partners, employees and agents for all losses and damages caused by, arising out of or resulting from any of the perils covered by such policies and any other property insurance applicable to the Work, but only to the extent of insurance coverage; and, in addition, waive all such rights against Consultants, Subcontractors, and all other identified persons or entities (and the officers, directors, partners, employees, agents, and other consultants and subcontractors of any and each of them) under such policies for losses and damages so caused and covered by insurance. None of the above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by CITY as trustee or otherwise payable under any policy so issued. None of the above waivers shall apply if specifically in conflict with Laws and Regulations. 5.08 Receipt and Application of Insurance Proceeds A. Any insured loss under the property insurance will be adjusted with CITY and made payable to CITY as fiduciary for the insureds, as their interests may appear, subject to the requirements of any indentures of indebtedness entered into by CITY. B. CONTRACTOR will give prompt written notice to the CITY of any claims that arise during the course and scope of the project. 5.09 Partial Utilization -Property Insurance A. If CITY finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work, such use or occupancy may be accomplished in accordance with Paragraph 14.05; provided that no such use or occupancy shall commence before the insurers providing the property insurance have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby. The insurers providing the property insurance shall consent on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy. ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES 6.01 Indemnification A. For purposes of this Paragraph 6.01 only, the following terms shall have the meanings listed: 1. Claims means all claims, damages, liability, losses, costs and expenses, including court costs and reasonable attorneys' fees, including attorney's fees incurred by the City in the enforcement of this indemnity obligation. 2. CONTRACTOR'S Agents means CONTRACTOR's officers, employees, subconsultants, subcontractors, successors, assigns, invitees, and other agents. 3. CITY means CITY, its Program Manager/Construction Advisor and any of their agents, officials, officers, employees and program managers or construction advisors. B. CONTRACTOR'S obligations under this Paragraph with respect to indemnification for acts or omissions shall be limited to the coverage and limits of insurance that CONTRACTOR is required to procure and maintain under this Contract. CONTRACTOR affirms that it has had the opportunity to recover the costs of the liability insurance required in this Contract in its contract price. 00700 Constriction General Conditions 073009 Page - 23 - of 64 Contract Central C. CONTRACTOR shall defend, indemnify and hold harmless CITY from and against all Claims arising out of or resulting from all acts or omissions in connection with this Contract caused in whole or in part by CONTRACTOR or CONTRACTOR's Agents. D. In any and all Claims against CITY, CONSULTANT, or any of their respective agents, officers, directors or employees by any employee (or the survivor or personal representative of such employee) of CONTRACTOR, any Subcontractor, any Supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work, or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph 6.01 C shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for CONTRACTOR or any such Subcontractor, Supplier or other person or organization under workers' compensation acts, disability benefit acts or other employee benefit acts. E. The indemnification obligations of CONTRACTOR under Paragraph 6.01 C shall not extend to liability arising out of, resulting from, or caused by the professional negligence, errors or omissions of CONSULTANT, or any of their respective agents, officers, directors or employees. 6.02 Supervision and Superintendence A. CONTRACTOR shall supervise, inspect and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences and procedures of construction, but CONTRACTOR shall not be responsible for the negligence of others in the design or specification of a specific means, method, technique, sequence or procedure of construction which is shown or indicated in and expressly required by the Contract Documents. CONTRACTOR shall be responsible to see that the completed Work complies accurately with the Contract Documents. B. At all times during the progress of the Work, CONTRACTOR shall assign a competent resident superintendent of the Work, who shall not be replaced without written request to and approval by CITY except under extraordinary circumstances. The superintendent will be CONTRACTOR's representative at the Site and shall have authority to act on behalf of CONTRACTOR. All communications given to or received from the superintendent shall be binding on CONTRACTOR. C. If it is determined to be in the best interest of the Work, CONTRACTOR shall replace the project manager, resident superintendent or any other employee of the CONTRACTOR, Subcontractors, Suppliers or other persons or organizations performing or furnishing any of the Work on the project upon written request by the CITY. 6.03 Services, Working Hours, Labor, Materials and Equipment A. CONTRACTOR shall provide competent, suitably qualified personnel to survey, lay out and construct or perform the Work as required by the Contract Documents. CONTRACTOR shall at all times maintain good discipline and order at the Site. This is a fixed price Contract. The CONTRACTOR will notify CITY staff of any work to be conducted after regular business hours ("regular business hours" are 8:00 a.m. to 5:00 p.m., Monday through Friday) and obtain approval and supervision for such work, if CITY staff determines need. CITY staff will rely on the Project Schedule to determine the need for such work conducted after regular business hours. CONTRACTOR shall not permit overtime work or the performance of Work on Saturday, Sunday or any legal holiday without CITY's written consent given after prior written notice to 00700 Construction General Conditbns 073009 Page - 24 - of 64 Contract Central CITY. B. Unless otherwise specified in Division 1, General Requirements, CONTRACTOR shall furnish and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work. C. All materials and equipment shall be of good quality and new, except as otherwise provided in the Contract Documents. Contractor shall repair or replace all equipment that has substantive or cosmetic damage prior to Acceptance Testing. All warranties and guarantees specifically called for by the Specifications shall expressly run to the benefit of CITY. If required by CITY, CONTRACTOR shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment. All materials and equipment shall be stored, applied, installed, connected, erected, used, cleaned and conditioned in accordance with instructions of the applicable Supplier, except as otherwise provided in the Contract Documents. D. It is the policy of the CITY that any manufactured goods or commodities used or supplied in the performance of this Contract and any subcontract hereto shall be manufactured or produced in the United States whenever possible. 6.04 Progress Schedule Riverside shall attend all status meetings and receive copies of all schedules provided to Kansas City as required by th Kansas City Contract. All components of the Riverside addition will be added to the Kansas City Schedules. 6.05 Recovery Schedules A. If the CONTRACTOR should: 00700 ConsWctbn General Conditions 073009 Page - 25 - of 54 Contrail Central 1. Fail, refuse or neglect to supply a sufficient number of workers or to deliver the materials or equipment with such promptness as to prevent the delay in the progress of the Work; 2. Fail in any respect to commence and diligently prosecute the Work in accordance with the approved baseline project schedule in order to achieve substantial completion; 3. Fail to commence, prosecute, finish, deliver or install the different portions of the Work on time as specified in the approved baseline project schedule; or 4. Fail in the performance of any of the material covenants of the Contract Documents; CITY shall have the right to direct the CONTRACTOR, upon thirty (30) calendar days notice, to prepare a written recovery plan, for CITY's approval, to accelerate the Work in order to conform to the approved baseline project schedule, including, without limitation, providing additional labor or expediting delivery of materials, performing overtime or re-sequencing the Work without adjustments to the Contract value. Upon CITY's approval of the recovery plan, CONTRACTOR shall accelerate the Work in accordance with the plan. B. Proposed recovery schedules shall be submitted to the CITY as a separate project plan for review and approval by CITY prior to incorporation into the approved baseline schedule. The recovery schedule shall be submitted in a format compatible with the baseline schedule format. Each proposed revision shall be submitted as a separate schedule, with the following minimum requirements: 1. A critical path method diagram showing revised and affected activities or Milestones. 2. An activity report for all revised and affected activities or Milestones. C. Upon acceptance of the recovery schedule by CITY, data shall be added or revised for all new or revised activities and incorporated into the approved baseline project schedule. 6.06 Substitutes and "Or-Equal" Items A. Materials or equipment: Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function, appearance and quality required. Unless the specification or description contains, or is followed by, words reading that no like, equivalent or "or-equal" item or no substitution is permitted, other items of material or equipment or material or equipment of other Suppliers may be submitted to CITY for review and approval by CITY's Representative under the following circumstances: 1. "Or-Equal": If, prior to receipt of Bids, Bidder proposes an item of material or equipment as functionally equal to that named and sufficiently similar so that no change in related Work will be required, CITY's Representative may consider it as an "or-equal" item. For the purposes of this Paragraph, a proposed item of material or equipment will be considered functionally equal to an item so named if: a. in the exercise of reasonable judgment: (1) It is at least equal in quality, durability, appearance, strength, and design characteristics; and 00700 Construction General Condflions 073009 Page - 26 - of 64 Contrail Central (2) It will reliably perform at least equally well the function imposed by the design concept of the completed Project as a functioning whole; and b. Bidder certifies that: (1) There is no increase in cost to the CITY; and (2) It will conform substantially, even with deviations, to the detailed requirements of the item named in the Contract Documents. If the CITY's Representative approves the proposed item, it may be accepted by CITY. 2. Substitute Items: If CONTRACTOR proposes an item of material or equipment as a substitute item, then CONTRACTOR shall submit sufficient information as provided below to allow CITY's Representative to determine that the item of material or equipment proposed is essentially equivalent to that named and an acceptable substitute therefore. The procedure for review by the CITY's Representative will include the following as supplemented in the General Requirements and as CITY's Representative may determine is appropriate under the circumstances: a. Requests for review of proposed substitute items of material or equipment will not be accepted by CITY's Representative from anyone other than CONTRACTOR. b. If CONTRACTOR wishes to furnish equipment, CONTRACTOR shall first Representative for acceptance thereof. or use a substitute item of material or make written application to CITY's c. In the application, CONTRACTOR shall certify that the proposed substitute will perform adequately the functions and achieve the results called for by the general design, be similar in substance to that specified and be suited to the same use as that specified. The application will state the extent, if any, to which the evaluation and acceptance of the proposed substitute will impact CONTRACTOR'S achievement of Substantial Completion, whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with CITY for work on the Project) to adapt the design to the proposed substitute and whether or not incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty. d. All variations of the proposed substitute from that specified will be identified in the application and available maintenance, repair and replacement service will be indicated. The application will also contain an itemized estimate of all costs or credits that will result directly or indirectly from acceptance of such substitute, including costs of redesign and claims of other contractors affected by the resulting change, all of which will be considered by CITY's Representative in evaluating the proposed substitute. CITY's Representative may require CONTRACTOR to furnish additional data about the proposed substitute. If the CITY'S Representative approves the proposed item, CITY may accept it. B. Substitute Construction Methods or Procedures: If a specific means, method, technique, sequence or procedure of construction is shown or indicated in and expressly required by the Contract Documents, CONTRACTOR may furnish or utilize a substitute means, method, technique, sequence or procedure of construction acceptable to CITY. CONTRACTOR shall notify CITY and submit sufficient information to allow CITY to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. 00700 ConsWction General Conditbns 073009 Page - 27 - of 64 Contract Central C. Expenses: Bidder shall provide all data in support of any "or equal" at Bidder's expense, and CONTRACTOR shall provide all data in support of any proposed substitute at CONTRACTOR'S expense. D. Evaluation: CITY'S Representative will be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to Paragraphs 6.06 A, and 6.06 B. CITY will be the sole judge of acceptability. No "or-equal" or substitute will be ordered, installed or utilized without CITY's prior written acceptance which will be evidenced by either a Change Order or an approved Shop Drawing. CITY may require CONTRACTOR to furnish at CONTRACTOR'S expense, a special performance guarantee or other surety with respect to any "or-equal" or substitute. . 6.07 Concerning Subcontractors, Suppliers and Others A. CONTRACTOR shall not employ any Subcontractor, Supplier or other person or organization (including those acceptable to CITY as indicated in Paragraph 6.07 B), whether initially or as a substitute, against whom CITY has reasonable objection. CONTRACTOR shall not be required to employ any Subcontractor, Supplier or other person or organization to furnish or perform any of the Work against whom CONTRACTOR has reasonable objection. CONTRACTOR shall submit required information for all Subcontractors on Form 01290.09 - Subcontractor and Major Material Suppliers List, provided in these Contract Documents, prior to Subcontractor beginning Work at the Site. B. The Contract requires the identity of certain Subcontractors, Suppliers or other persons or organizations (including those who are to furnish the principal items of materials or equipment) to be submitted to CITY on or before the date specified in the Contract, for acceptance by CITY. If CONTRACTOR has submitted a list thereof, CITY may accept (either in writing or by failing to make written objection thereto by the date indicated for acceptance or objection in the Contract Documents) any such Subcontractor, Supplier or other person or organization so identified, or may reject same on the basis of reasonable objection after due investigation, in which case CONTRACTOR shall submit an acceptable replacement for the rejected Subcontractor, Supplier or other person or organization. The Contract Price will be adjusted by the difference in the cost occasioned by such substitution, and an appropriate Change Order will be issued or Written Amendment signed. No acceptance by CITY of any such Subcontractor, Supplier or other person or organization shall constitute a waiver of any right of CITY to reject defective Work. C. CONTRACTOR shall be fully responsible to CITY for all acts and omissions of the Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with CONTRACTOR just as CONTRACTOR is responsible for CONTRACTOR's own acts and omissions. Nothing in the Contract Documents shall create for the benefit of any such Subcontractor, Supplier or other person or organization any contractual relationship between CITY and any such Subcontractor, Supplier or other person or organization, nor shall it create any obligation on the part of CITY to pay or to see to the payment of any moneys due any such Subcontractor, Supplier or other person or organization except as may otherwise be required by Laws or Regulations. D. CONTRACTOR shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with CONTRACTOR. E. CONTRACTOR shall require all Subcontractors, Suppliers and such other persons and organizations performing or furnishing any of the Work to communicate with CITY through CONTRACTOR. 00700 ConsWc0an General Conditions 013009 Page - 28 - of 64 Contract Central F. The divisions and sections of the Specifications and the identifications of any Drawings shall not control CONTRACTOR in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade. G. All Work performed for CONTRACTOR by a Subcontractor or Supplier shall be pursuant to an appropriate agreement between CONTRACTOR and the Subcontractor or Supplier that specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents for the benefit of CITY. Whenever any such agreement is with a Subcontractor or Supplier who is listed as an additional insured on the property insurance provided in Paragraph 5.06, the agreement between the CONTRACTOR and the Subcontractor or Supplier will contain provisions whereby the Subcontractor or Supplier waives all rights against CITY, CONTRACTOR, Consultants and all other additional insureds for all losses and damages caused by, arising out of or resulting from any perils, to the extent covered by such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, CONTRACTOR will obtain the same. H. In accordance with the provisions of subparagraph C hereof, the agreement between CONTRACTOR and the Subcontractor or Supplier referred to in subparagraph G, shall provide that the CONTRACTOR and the Subcontractor or Supplier agree not to request CITY or CITY's Representative to intervene in or facilitate the resolution of claims or contract disputes arising out of or related to the agreement between CONTRACTOR and the Subcontractor or Supplier. Furthermore, the Contracts between CONTRACTOR and Subcontractors or Suppliers shall provide that all unresolved claims and disputes between CONTRACTOR and the Subcontractor or Supplier that remain unresolved after thirty (30) calendar days from the notice of claim, shall be subject to mediation as a condition precedent to the institution of legal proceedings by either party. Any such mediation shall be conducted in accordance with the rules of the American Arbitration Association. I. Any provision in any subcontractor agreement associated with this Contract that explicitly states or implies that the subcontractor shall only be paid for work performed if or when the general CONTRACTOR is paid by the CITY is against public policy and shall be considered null and void. 6.08 Patent Fees and Royalties A. CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation into the Work of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product or device is specified in the Contract Documents for use in the performance of the Work, and if to the actual knowledge of CITY its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by CITY in the Contract Documents. 6.09 Permits A. Unless otherwise provided in the Contract, CONTRACTOR shall obtain and pay for all construction permits and licenses. CITY shall assist CONTRACTOR, when necessary, in obtaining such permits and licenses. CONTRACTOR shall pay all governmental charges and inspection fees necessary for the prosecution of the Work, which are applicable at the time of opening of Bids, or, if there are no Bids, on the Effective Date of the Contract. CONTRACTOR shall pay all charges of utility owners for connections to the Work, and CITY shall pay all charges of such utility owners for capital costs related thereto, such as plant investment fees. 00700 Constriction General Conditions 073009 Page - 29 - of li4 Contract Central 6.10 Compliance with Laws and Regulations A. CONTRACTOR shall give all notices and comply with all Laws or Regulations applicable to furnishing and performing the Work. Except where otherwise expressly required by applicable Laws or Regulations, CITY shall be not responsible for monitoring CONTRACTOR's compliance with any Laws or Regulations.. B. Failure to Comply. If CONTRACTOR performs any Work in violation of applicable Laws or Regulations, CONTRACTOR shall bear all claims, costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) caused by, arising out of or resulting therefrom; however, it shall not be CONTRACTOR's primary responsibility to make certain that the Specifications and Drawings are in accordance with Laws or Regulations, but this shall not relieve CONTRACTOR of CONTRACTOR'S obligations under Paragraph 3.03. C. Conflicts of Interest. The provisions of City's Code Sections 2-1015 and 2-1764, prohibiting City officers and employees from having a financial or personal interest in any contract with City, and Code Sections 2-1016 and 2-1770, imposing sanctions for violations, shall apply to this Contract. CONTRACTOR certifies that no officer or employee of City has, or will have, a direct or indirect financial or personal interest in this Contract, and that no officer or employee of City, or member of such officer's or employee's immediate family, either has negotiated, or has or will have an arrangement concerning employment to perform services on behalf of CONTRACTOR on this Contract. D. Licenses and Permits. Except for FCC Licenses, which shall be filed by the CONTRACTOR with the fees for such licenses paid by the CITY, CONTRACTOR, at its own expense, shall secure or cause to be secured all licenses and permits from public or private sources necessary for the fulfillment of its obligations under this Contract. All references in this Contract to the "Code" shall mean City's Code of Ordinances, including any amendments thereto or re-codification thereof unless the context clearly indicates otherwise. CONTRACTOR shall obtain copies of all necessary licenses and permits from Subcontractors required for the Work before Subcontractors begin Work at the Site. CONTRACTOR shall retain such evidence in its files and make available to CITY within ten (10) days after CITY'S written request. FCC and frequency licensing are addressed in Sections 14 and 15 of the Statement of Work, which is an Attachment to this Agreement. E. Americans with Disabilities Act. CONTRACTOR agrees to comply, during the course of this Contract, with all provisions of the Americans with Disabilities Act, 42 U.S.C. Sec. 12101 et seq., as well as 28 CFR Parts 35 and 36 and 29 CFR Part 1630, as applicable and as amended from time to time. F. Affirmative Action. CONTRACTOR and each of its Subcontractors with a Subcontract of more than $123,500.01 shall establish and maintain for the term of this Contract an Affirmative Action Program in accordance with the provisions of Chapter 38 of City's Code, the rules and regulations relating to those sections, and any additions or amendments thereto. CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry or national origin, sex, disability, age or sexual orientation, in a manner prohibited by Chapter 38 of City's Code. City has the right to take action as directed by City's Human Relations Department to enforce this provision. If CONTRACTOR fails, refuses or neglects to comply with the provisions of Chapter 38 of City's Code, then such failure shall be deemed a total breach of this Contract and this Contract may be terminated, canceled or suspended, in whole or in part, and CONTRACTOR may be declared ineligible for any further contracts funded by City for a period of one (1) year. This is a material term of this Contract. 00700 Construction General Conditions 073009 Page - 30 - of 64 Contract Central G. Intentionally Struck H. Records. 1. For purposes of this subparagraph: (a) "City" shall mean the City Auditor, the City's Internal Auditor, the City's Director of Human Relations, the City Manager, the City department administering this Contract and their delegates and agents. (b) "Record" shall mean any document, book, paper, photograph, map, sound recordings or other material, regardless of physical form or characteristics, made or received in connection with this Contract and all Contract amendments and renewals. 2. Contractor shall maintain and retain all Records for a term of five (5) years that shall begin after the expiration or termination of this Contract and all Contract amendments. City shall have a right to examine or audit all Records and Contractor shall provide access to City of all records upon ten (10) days written notice from the City. I. Prevailing Wage. 1. CONTRACTOR shall comply and require its Subcontractors to comply with; a. sections 290.210 to 290.340, RSMo the State of Missouri Prevailing Wage Law (the "Law"); and b. 8 CSR 30-3.010 to 8 CSR 30-3.060, the Prevailing Wage Law Rules (the °Rules"); and c. the Annual Wage Order (Wage Order) issued by the State of Missouri's Department of Labor and Industrial Relations; and d. any applicable Annual Incremental Wage Increase (Wage Increase) to the Annual Wage Order. 2. The Law, Rules, Annual Wage Order and any Wage Increase are incorporated into and made part hereof this Contract and shall be collectively referred to in this paragraph as the "Prevailing Wage Requirements." 00700 Construction General Conditions 073009 Page - 31- of 64 ConUact CenUal 3. CONTRACTOR shall pay and require its Subcontractors to pay to all workers performing work under this Contract not less than the prevailing hourly rate of wages for the class or type of work performed by the worker in accordance with the Law, Rules, Wage Order and any applicable Wage Increase. CONTRACTOR shall take whatever steps are necessary to insure that the prevailing hourly wage rates are paid and that all workers for CONTRACTOR and each of its Subcontractors are paid for the class or type of work performed by the worker in accordance with the Prevailing Wage Requirements. 4. Prior to each of its Subcontractors beginning Work on the Site, CONTRACTOR shall require each Subcontractor to complete CITY's Form 00490 entitled "Pre-contract Certification" that sets forth the Subcontractor's prevailing wage and tax compliance history for the two (2) years prior to the bid. CONTRACTOR shall retain one (1) year and make the Pre-contract Certifications available to CITY within five (5) days after written request. 5. CONTRACTOR shall keep and require each of its Subcontractors engaged in the construction of public works in performance of the Contract to keep full and accurate records on CITY's: a. "Certified Payroll Report" Form indicating the worker's name, address, social security number, occupation(s) and craft(s) of every worker employed in connection with the public work together with the number of hours worked by each worker and the actual wages paid in connection with the Project; and b. "Daily Labor Force Report" Form indicating the worker's name, occupational title or classification group & skill and the workers' hours. CITY shall furnish blank copies of the Daily Labor Force Report Form to CONTRACTOR for its use and for distribution to Subcontractors; and c. "Payroll Certification" Form. CONTRACTOR shall prepare and shall require each Subcontractor to prepare a "Payroll Certification" Form to accompany the Certified Payroll Report. The Payroll Certification must be signed by the employee or agent who pays or supervises the payment of the workers employed under the Contract for the CONTRACTOR and each Subcontractor. Copies of CITY's "Certified Payroll Report" form, the Daily Labor Force Report and Payroll Certification Form are included in the Project Manual and are collectively referred to in this paragraph as the "Records." 6. CONTRACTOR shall submit its and its Subcontractors Daily Labor Force Reports to CITY each day. CONTRACTOR shall make all of CONTRACTOR's and Subcontractors' Records open to inspection by any authorized representatives of OWNER and the Missouri Department of Labor and Industrial Relations at any reasonable time and as often as they may be necessary and such Records shall not be destroyed or removed from the State of Missouri for a period of one (1) year following the completion of the public work in connection with which the Records are made. CONTRACTOR shall have its and its Subcontractors Certified Payroll Reports and Payroll Certifications available at the CONTRACTOR's office and shall provide the Records to the City electronically at City's sole discretion. In addition, all Records shall be considered a public record and CONTRACTOR shall provide the Records to the CITY in the format required by the CITY within three (3) working days of any request by CITY at the CONTRACTOR's cost. CITY, in its sole discretion, may require CONTRACTOR to send any of the Records directly to the person who requested the Record at CONTRACTOR's expense. 00700 Construction General Condftions 073009 Page - 32 - of ti4 Contract Central 7. CONTRACTOR shall post and keep posted a clearly legible statement of all prevailing hourly wage rates to be paid to all workers employed by CONTRACTOR and each of its Subcontractors in the performance of this Contract in a prominent and easily accessible place at the Site of the Work by all workers. 8. If the Contract Price exceeds $250,000.00, CONTRACTOR shall and shall require each Subcontractor engaged in any construction of public works to have its name, acceptable abbreviation or recognizable logo and the name of the city and state of the mailing address of the principal office of the company, on each motor vehicle and motorized self-propelled piece of equipment which is used in connection with the Project during the time the CONTRACTOR or Subcontractor is engaged on the project. The sign shall be legible from a distance of twenty (20') feet, but the size of the lettering need not be larger than iwo (2) inches. In cases where equipment is leased or where affixing a legible sign to the equipment is impractical, the CONTRACTOR may place a temporary stationary sign, with the information required pursuant to this paragraph, at the main entrance of the Project in place of affixing the required information on the equipment so long as such sign is not in violation of any state or federal statute, rule or regulation. Motor vehicles which are required to have similar information affixed thereto pursuant to requirements of a regulatory agency of the state or federal government are exempt from the provisions of this subparagraph. 9. CONTRACTOR must correct any errors in CONTRACTOR's or any Subcontractors' Records, or CONTRACTOR'S or any Subcontractors' violations of the Law, Rules, Annual Wage Order and any Wage Increase within fourteen (14) calendar days after notice from CITY. 10. CONTRACTOR shall and shall require its Subcontractors to cooperate with the CITY and the Department of Labor and Industrial Relations in the enforcement of this Paragraph, the Law, Rules, Annual Wage Order and any Wage Increase. Contractor shall and shall require its Subcontractors to permit CITY and the Department of Labor and Industrial Relations to interview any and all workers during working hours on the Project at CONTRACTOR's sole cost and expense. 11. CONTRACTOR shall file with CITY, upon completion of the Project and prior to final payment therefore, affidavits from CONTRACTOR and each of its Subcontractors, stating that each has fully complied with the provisions and requirements of the Missouri Prevailing Wage Law. CITY shall not make final payment until the affidavits, in proper form and order, from CONTRACTOR and each of its Subcontractors, are filed by CONTRACTOR. 12. CONTRACTOR shall forfeit as a statutory penalty to the CITY one hundred dollars ($100.00) for each worker employed, for each calendar day, or portion thereof, such worker is paid less than the prevailing hourly rates for any work done under this Contract, by CONTRACTOR or by any of CONTRACTOR'S Subcontractors. If CONTRACTOR or any of its Subcontractors have violated any section(s) of 290.210 to 290.340, RSMo, in the course of the execution of the Contract, CITY shall when making payments to the CONTRACTOR becoming due under this Contract, withhold and retain therefrom all sums and amounts due and owing as a result of any violation of sections 290.210 to 290.340, RSMo. J .Prevailing Wage Damages. CONTRACTOR acknowledges and agrees that, based on the experience of CITY, violations of the Missouri Prevailing Wage Act, whether by CONTRACTOR or its Subcontractors, commonly result in additional costs to CITY. CONTRACTOR agrees that additional costs to CITY for any particular violation are difficult to establish and include but are not limited to: costs of construction delays, additional work for 00700 Construction General CondAions 073009 Page - 33 - of fi4 Contrail Central CITY, additional interest expenses, investigations, and the cost of establishing and maintaining a special division working under the City Manager to monitor prevailing wage compliance. 1. In the event of the failure by CONTRACTOR or any of its Subcontractors to pay wages as provided in the Missouri Prevailing Wage Act, CITY shall be entitled to deduct from the Contract Price, and shall retain as liquidated damages, one hundred dollars ($100.00) per day, per worker who is paid less than the prevailing hourly rate of wages, to approximate the additional costs. The sum shall be deducted, paid or owed whether or not the Contract Times have expired. 2. CITY shall give written notice to CONTRACTOR setting forth the workers who have been underpaid, the amount of the statutory penalty and the amount of the liquidated damages as provided for in this Subparagraph J. CONTRACTOR shall have fourteen (14) calendar days to respond, which time may be extended by CITY upon written request. If CONTRACTOR fails to respond within the specified time, the CITY's original notice shall be deemed final. If CONTRACTOR responds to CITY's notice, CITY will furnish CONTRACTOR a final decision in writing within five (5) days of completing any investigation. K. Missouri Secretary of State Business Entity Registration. CONTRACTOR shall obtain from all Subcontractors for the Project, a copy of their current certificate of good standing or fictitious name registration from the Missouri Secretary of State before they begin work on the Site. CONTRACTOR shall retain such documents in its files and make available to CITY within ten (10) days after written request. L. Tropical Hardwoods. The provisions of Code Section 2-1872, restricting the use of tropical hardwoods, shall apply to this Contract. M. Preference for Missouri Products. Pursuant to Section 71.140 RSMo., preference shall be given to materials, products, supplies and all other articles produced, manufactured, made or grown within the State of Missouri. N. Guidelines for Open Excavations. CONTRACTOR shall restore required excavations to the level of the adjacent surfaces as soon as practicable. Unsupervised open excavations on public properties are discouraged at all times. If CONTRACTOR, in performance of the Work, makes or causes to be made any excavation in, upon, under, through or adjoining any street, sidewalk, alley, park, boulevard, parkway or any other public properties, and shall leave any part or portion thereof open, CONTRACTOR shall provide effective protection to the public. CONTRACTOR shall protect and secure all excavations in roadways in compliance with existing federal, state and local codes and standards, including, but not limited to the most current edition of the Manual of Uniform Traffic Control Devices. CONTRACTOR shall protect and secure all unsupervised excavations not within roadways, either by covering or fencing. 1. Covering. A protective cover that can sustain the weight of persons or of objects that are placed upon it may be installed over an unsupervised excavation. The cover shall be secured to the ground to prevent movement. Protective covers shall have no opening(s) or protuberance(s) of sufficient size to cause a fall and/or injury. Advance warning devices shall be installed as necessary. 2. Fencing. Fencing to prevent entry may be installed surrounding an unsupervised excavation not protectively covered in its entirety. The fencing shall be a minimum of 42" in height. The fencing shall be constructed in such a manner that it is adequately secured and will remain upright at all times under normal Site conditions. All protective coverings and fences over and around excavations shall be inspected at least daily to 00700 Construc0on General Conditions 073009 Page - 34 - of fi4 Contract Central assuro integrity. Protective coverings and/or fences in heavily trafficked arose shall be inspected more often as necessary. 0. Notification of Utillti~. CONTRACTOR shall adhere to the provisions of Sections 319.010 et seq., RSMo., which requires that a person or firm making own excavation in any public street, road or alley, right of way dedicated to public use, utility easement of record, or within any private street or private property do so only after giving notice t©, and obtaining information from, owners of Underground Facilities. The 24-hour, toll-free accident prevention hotline number in Missouri is 1-800-344-7483 (1-800-Digrite). P. Periods of Excessive Unemployment 1. "Resident Laborers" means laborers who have been residents of the State of Missouri for at least thirty days and who intend to romain Missouri residents, and residents of Nonrestrictive States. 2. "Nonrestrictive States" means states identified by the Missouri Department of Labor and Industrial Relations Division of Labor Standards that have not enacted state laws restricting Missouri laborers from working on public works projects. A list of Nonrestrictive States can be found on the Division web site at -+++~•~ dolir,mo.aov/Is/indax,htm. 3. A period of Excessive Unemployment is declared when the Missouri Department of Labor and Industrial Relations Division of Labor Standards provides notice of such declaration. When in effect, notice will be provided on the Division web site at htto•IMrww dolir.mo.aov/ls/index.htm. It is CONTRACTOR's obligation to determine whether a period of Excessive Unemployment is in effect when this Contract is let. 4. CONTRACTOR agrees to follow the provisions of Section 290.560 - 290.575 RSMo and agrees that if a period of Excessive Unemployment has been declarod at any point during the term of this Contract, it will employ and require all Subcontractors of whatever tier to employ only Resident Laborers for the Work to be performed under this CONTRACT. Provided, however, CONTRACTOR may use laborers who are not Resident Laborers when Resident Laborers are not available or are incapable of performing the particular type of work involved if CONTRACTOR so certifies in writing to CITY and CITY issues a written approval. This provision doss not apply to regularly employed nonresident executive, supervisory or technical employees. Q. Employee Eligibility Verification. CONTRACTOR shall adhere to the provisions of Sections 285.525 et seq., RSMo., which requiros that for any contrnct exceeding five thousand dollars ($5,000.00), CONTRACTOR shall execute and submit an affidavit, in a form prescribed by CITY, affirming that CONTRACTOR does not knowingly employ any person in connection with the contracted services who does not have the legal right or authorization under federal law to work in the United States as defined in 8 U.S.C.§ 1324a(h)(3). CONTRACTOR shall attach to the affidavit documentation sufficient to establish CONTRACTOR'S enrollment and participation in an electronic verification of work program operated by the United States Department of Homeland Security (E-Verify) or an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, under the Immigration Reform and Control Act of 1986. CONTRACTOR may obtain additional information about E-Verify and enroll at http~//www dhs aov/xprevprot/proarams/gc 1185221678150.shtm For those Contractors enrolled in E-Verify, the first and last pages of the E-Verify Memorandum of Understanding that CONTRACTOR will obtain upon suxessfully enrolling in the program shall constitute sufficient documentation for purposes of complying with this Paragraph. 00700 ConsUuction General CondRans 073009 Page - 35 - of 64 Contract Central CONTRACTOR shall submit the affidavit and attachments to CITY prior to execution of the Contract, or at any point during the term of the Contract if requested by City. 6.11 Taxes A. CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to be paid by CONTRACTOR in accordance with the Laws or Regulations of the place of the Project which are applicable during the performance of the Work. B. Tax Compliance. 1. As a condition precedent to CITY making its first payment to CONTRACTOR under this Contract, CONTRACTOR shall furnish to CITY sufficient proof from City's Finance Department, dated not more than one (1) year prior to the date provided to CITY, verifying that CONTRACTOR is in compliance with the license and tax ordinances administered by City's Finance Department. 2. As a condition precedent to Subcontractors performing any Work under this Contract, CONTRACTOR shall obtain from Subcontractor sufficient proof from City's Finance Department, dated not more than one (1) year before the date Subcontractor begins Work, verifying that the Subcontractor is in compliance with the license and tax ordinances administered by City's Finance Department. CONTRACTOR shall retain such documentation in its files and make available to CITY within ten (10) days after a written request. 3. As a condition precedent to CITY making final payment under this Contract, if this Contract is longer than one (1) year, CONTRACTOR shall furnish to CITY sufficient ' proof from City's Finance Department, dated not more than one (1) year before the filing of a final Application for Payment, verifying that CONTRACTOR is in compliance with the license and tax ordinances administered by City's Finance Department. 4. If this Contract is longer than one (1) year, CONTRACTOR shall obtain from Subcontractors sufficient proof from City's Finance Department, dated not more than one (1) year before the date of CONTRACTOR'S final payment to the Subcontractor, that the Subcontractor was or is in compliance with the license and tax ordinances administered by City's Finance Department. CONTRACTOR shall retain such documentation in its files and make available to CITY within ten (10) days after written request. 5. If, at the time of final payment to CONTRACTOR, CONTRACTOR is unable to obtain from all its Subcontractors, if any, and furnish to CITY sufficient proof from City's Finance Department that all its Subcontractors are in compliance with the license and tax ordinances administered by City's Finance Department, CITY may approve final payment to CONTRACTOR if CITY determines that CONTRACTOR has made a good faith effort to furnish evidence or that there are other extenuating circumstances which make it impossible for CONTRACTOR to furnish sufficient proof. C. Missouri Sales Tax Exemption. Pursuant to Section 144.062, RSMo., CITY is a Missouri exempt entity and tangible personal property to be incorporated or consumed in the construction of this Project may be purchased without sales tax. CITY shall furnish CONTRACTOR a Missouri Project Exemption Certificate for Sales Tax at the time of issuance of the Notice to Proceed. 00700 ConsWction General Conditions 073009 Page - 36 - of li4 Contrail Central 6.12 Use of Site and Other Areas A. CONTRACTOR shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas identified in and permitted by the Contract Documents and other areas permitted by Laws or Regulations. CONTRACTOR shall not unreasonably encumber the Site and the other areas with construction equipment or other materials or equipment. CONTRACTOR shall assume full responsibility for any damage to the Site or the other areas, or to the owner or occupant thereof, or of any adjacent land or areas, resulting from the performance of the Work. B. Should any claim be made by any such owner or occupant because of the performance of the Work, CONTRACTOR shall promptly settle with such other party by negotiation or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law. In case of a failure on the part of the CONTRACTOR to restore such property or to make good such damage or injuries, the CITY may, upon forty-eight (48) hours written notice to the CONTRACTOR, repair, rebuild or otherwise restore such property as the CITY may deem necessary, and the cost thereof will be deducted from any moneys due or which may become due the CONTRACTOR under this Contract. C. During the progress of the Work, CONTRACTOR shall keep the Site and the other areas free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the completion of the Work CONTRACTOR shall remove all waste materials, rubbish and debris from Site and other areas as well as all tools, appliances, construction equipment and machinery and surplus materials. CONTRACTOR shall leave the Site clean and ready for utilization or occupancy by CITY at Substantial Completion of the Work. CONTRACTOR shall restore to all property not designated for alteration by the Contract Documents to its pre-Work condition. D. CONTRACTOR shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall CONTRACTOR subject any part of the Work or adjacent property to stresses or pressures that will endanger it. E. CONTRACTOR shall defend, indemnify and hold harmless the CITY from all claims and damages resulting from CONTRACTOR's negligence in transporting equipment and materials owned by a third party that is stored at a site. 6.13 Record Documents A. CONTRACTOR shall maintain in a safe place at the Site one record copy of all Drawings, Specifications, Addenda, the Contract, Written Amendments, Change Orders, Work Change Directives, and written interpretations and clarifications in good order and annotated to show all changes made during construction. These record documents, together with all approved Samples and a counterpart of all approved Shop Drawings, will be available to CITY for reference. Upon completion of the Work, these record documents, Samples and Shop Drawings will be delivered to CITY. 6.14 Safety and Protection A. CONTRACTOR shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. CONTRACTOR shall comply with all applicable Laws or Regulations relating to the safety of persons or property to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for safety and protection. CONTRACTOR shall deliver to CITY a copy of CONTRACTOR'S Health and Safety Plan as provided in the Notice of Intent to Contract. 00700 Constriction General Conditions 073009 Page - 37 - o(64 Contrail Central B. CONTRACTOR shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property. All damage, injury or loss to any property referred to in Paragraph 6.14 B.2 or 6.14 B.3 caused, directly or indirectly, in whole or in part, by CONTRACTOR, any Subcontractor, Supplier or any other person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, shall be remedied by CONTRACTOR (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of CITY, Consultant, or anyone employed by any of them or anyone for whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of CONTRACTOR, Subcontractor, Supplier or other person or organization directly or indirectly employed by any of them). CONTRACTOR's duties and responsibilities for safety and for protection of the Work shall continue until such time as all the Work is completed. CONTRACTOR shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1. All persons on the Site or who may be affected by the Work; 2. All the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and 3. Other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and Underground Facilities not designated for removal, relocation or replacement in the course of the Work. 6.15 Safety Representative In accordance with OSHA standards, CONTRACTOR shall designate a qualified and experienced safety representative whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. CONTRACTOR'S safety representative shall remain at the Site whenever there is Work in progress and shall immediately notify CITY of any emergencies or accidents occurring at the Site 6.16 Hazard Communication Programs A. CONTRACTOR shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations. 6.17 Emergencies A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, CONTRACTOR, without special instruction or authorization from CITY, is obligated to act to prevent threatened damage, injury or loss. CONTRACTOR shall give CITY prompt written notice if CONTRACTOR believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If CITY determines that a change in the Contract Documents is required because of the action taken by CONTRACTOR in response to an emergency, a Work Change Directive or Change Order will be issued. B. A change in the Contract Documents pursuant to Paragraph 6.15 A will not be an automatic authorization of, nor a condition precedent to, entitlement to adjustment in the Contract Price or Contract Times. If CITY and CONTRACTOR are unable to agree on 00700 Construction General Conditions 073009 Page - 38 - of 64 Contract Central entitlement to, or magnitude of, an equitable adjustment in the Contract Price or Contract Times, a Claim may be made therefore as provided in Article 16. However, OWNER and Consultants shall not be liable to CONTRACTOR for any costs, losses or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all other dispute resolution costs) sustained by CONTRACTOR on or in connection with any other project or anticipated project. 6.18 Shop Drawings and Samples A. CONTRACTOR shall submit Shop Drawings to CITY for review and approval in accordance with the accepted schedule of Shop Drawings and Sample submittals (see Paragraph 2.07). All submittals shall be identified as CITY may require and in the number of copies specified in the General Requirements. The data shown on the Shop Drawings shall be complete with respect to quantities, dimensions, specified performance and design criteria, materials and similar data to show CITY the services, materials and equipment CONTRACTOR proposes to provide and to enable CITY to review the information for the limited purposes required by Paragraph 6.18 D. B. CONTRACTOR shall also submit Samples to CITY for review and approval in accordance with said accepted schedule of Shop Drawings and Sample submittals. Each Sample shall be identified clearly as to material, Supplier, pertinent data such as catalog numbers and the use for which intended and otherwise as CITY may require to enable CITY to review the submittal for the limited purposes required by Paragraph 6.18 D. The numbers of each Sample to be submitted will be as specified in the Specifications. C. Submittal Procedures: 1. Before submitting each Shop Drawing or Sample, CONTRACTOR shall have determined and verified: a. all field measurements, quantities, dimensions, specified performance criteria, installation requirements, materials, catalog numbers and similar information with respect thereto; b. all materials with respect to intended use, fabrication, shipping, handling, storage, assembly and installation pertaining to the performance of the Work; c. all information relative to means, methods, techniques, sequences and procedures of construction and safety precautions and programs incident thereto; and d. CONTRACTOR shall also have reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents. 2. Each submittal shall bear a stamp or specific written indication that CONTRACTOR has satisfied CONTRACTOR's obligations under the Contract Documents with respect to CONTRACTOR's review and approval of that submittal. 3. At the time of each submission, CONTRACTOR shall give CITY specific written notice of such variations, if any, that the Shop Drawing or Sample submitted may have from the requirements of the Contract Documents, the notice to be in a written communication separate from the submittal, and, in addition, shall cause a specific notation to be made on each Shop Drawing and Sample submitted to CITY for review and approval of each such variation. 00700 Construction General Conditions 073009 Page - 39 - of 64 Contract Central D. Intentionally Struck E. Where a Shop Drawing or Sample is required by the Contract Documents or the schedule of Shop Drawings and Sample submissions accepted by CITY as required by Paragraph 2.06, any related Work performed prior to CITY's review and approval of the pertinent submittal will be at the sole expense and responsibility of CONTRACTOR. F. CONTRACTOR shall make corrections required by CITY and shall return the required number of corrected copies of Shop Drawings and submit as required new Samples for review and approval. CONTRACTOR shall direct specific attention in writing to revisions other than the corrections called for by CITY on previous submittals. 6.19 Continuing the Work A. CONTRACTOR shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with CITY No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by Paragraph 15.04 or as CITY and CONTRACTOR may otherwise agree in writing. 6.20 CONTRACTOR's General Warranty and Guarantee A. CONTRACTOR warrants and guarantees to CITY and Consultants that all Work will be in accordance with the Contract Documents and will not be defective. CONTRACTOR's warranty and guarantee hereunder excludes defects or damage caused by: 1. Abuse, modification or improper maintenance or operation by persons other than CONTRACTOR, Subcontractors, Suppliers or any other individual or entity for whom CONTRACTOR is responsible; or 2. Normal wear and tear under normal usage. B. CONTRACTOR's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of CONTRACTOR's obligation to perform the Work in accordance with the Contract Documents: 1. Observations by Consultant; 2. Recommendation of any progress or final payment by Consultant; 3. The issuance of a certificate of Substantial Completion or any payment related thereto by CITY to CONTRACTOR; 4. Use or occupancy of the Work or any part thereof by OWNER; 5. Any review and approval of a Shop Drawing or Sample submittal or the issuance of a notice of acceptability by CITY; 6. Any inspection, test or approval by others; or 7. Any correction of defective Work by CITY. C. Nonconforming Work is rejected unless expressly accepted in writing by the CITY's Representative. 00700 Construction General Cond'Aions 073009 Page - 40 - of 64 Contract Central D. System Functionality. CONTRACTOR represents that the System will perform in accordance with the Specifications in all material respects. Upon System Acceptance this System functionality representation is fulfilled. CONTRACTOR is not responsible for System performance deficiencies that are caused by ancillary equipment not furnished by CONTRACTOR which is attached to or used in connection with the System or for reasons or parties beyond CONTRACTOR's control, such as natural causes; the construction of a building that adversely affects the microwave path reliability or radio frequency (RF) coverage; the addition of frequencies at System sites that cause RF interference or intermodulation; or CITY changes to load usage or configuration outside the Specifications. E. Equipment Warranty. During the Warranty Period, CONTRACTOR warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. If System Acceptance is delayed beyond six (6) months after shipment of the Equipment by events or causes within CITY's control, this warranty expires eighteen (18) months after the shipment of the Equipment. F. CONTRACTOR Software Warranty. Unless otherwise stated in the Software License Agreement, during the Warranty Period, CONTRACTOR warrants the CONTRACTOR Software in accordance with the terms of the Software License Agreement and the provisions of this Agreement that are applicable to the CONTRACTOR Software. If System Acceptance is delayed beyond six (ti) months after shipment of the CONTRACTOR Software by events or causes within CITY's control, this warranty expires eighteen (18) months after the shipment of the CONTRACTOR Software. G. Exclusions to Equipment and CONTRACTOR Software Warranties. These warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or CONTRACTOR Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized in writing by CONTRACTOR; CITY's failure to comply with all applicable industry standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries (because they carry their own separate limited warranty) or consumables; (v) freight costs to ship Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and (vii) normal or customary wear and tear. H. Warranty Claims. To assert a warranty claim, CITY must notify CONTRACTOR in writing of the claim before the expiration of the Warranty Period. Upon receipt of this notice, CONTRACTOR will investigate the warranty claim. If this investigation confirms a valid warranty claim, CONTRACTOR will (at its option and at no additional charge to CITY) repair the defective Equipment or CONTRACTOR Software, replace it with the same or equivalent product, or refund the price of the defective Equipment or CONTRACTOR Software. That action will be the full extent of CONTRACTOR's liability for the warranty claim. If this investigation indicates the warranty claim is not valid, then CONTRACTOR may invoice CITY for responding to the claim on a time and materials basis using CONTRACTOR's then current labor rates. Repaired or replaced product is warranted for the balance of the original applicable warranty period. All replaced products or parts will become the property of CONTRACTOR. I. Original End User Is Covered. These express limited warranties are extended by CONTRACTOR to the original user purchasing the System for commercial, industrial, or governmental use only, and are not assignable or transferable. J. Disclaimer Of Other Warranties. These warranties are the complete warranties for the equipment and CONTRACTOR software provided under this Agreement and are given in lieu of all other warranties. CONTRACTOR disclaims all other warranties or conditions, express or 00700 Construction General Conditions 073009 Page - 41- or 64 Contrail Central implied, including the implied warranties of merchantability and fitness for a particular purpose. K. Replacement Parts. The CONTRACTOR shall make replacement parts available for all CONTRACTOR manufactured components of the radio infrastructure for ten (10) years following system acceptance. CONTRACTOR has provided the Spare Parts identified in Spares Attachment 13. In the event that a replacement part is identified as being the direct cause of: 25°k of the system failing 25% of site channels failing 25% of site dispatch positions failing An issue that results in an unusable voice radio system And has not been accounted for on the Spares Attachment, the replacement part shall be available within forty-eight (48) hours of the replacement part's order. If the CITY does receive an ordered replacement part within forty-eight (48) hours of such order, then a cost reduction penalty shall be assessed in the amount of five percent (5%) per day for each day such part is not received. However, such cost reduction penalty shall not exceed a 50% reduction in the price of any replacement part charged the CITY. ARTICLE 7 OTHER WORK 7.01 Related Work at Site A. CITY may perform other work related to the Project at the Site by CITY's own forces, or let other direct contracts therefore, or have other work performed by utility owners. If such other work is to be performed and such fact was not noted in the Contract Documents, then: 1. Written notice thereof will be given to CONTRACTOR prior to starting any such other work, and 2. CONTRACTOR may make a Claim therefore as provided in Article 16 if CONTRACTOR believes that such performance involves additional expense to CONTRACTOR or requires additional time and the parties are unable to agree as to the amount or extent thereof. B. CONTRACTOR shall afford each other contractor who is a party to such a direct contract, and each utility owner (and CITY, if CITY is performing the additional work with CITY's employees) proper and safe access to the Site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work and shall properly connect and coordinate the Work with theirs. Unless otherwise provided in the Contract Documents, CONTRACTOR shall do all cutting, fitting and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. CONTRACTOR shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of CITY and the others whose work will be affected. The duties and responsibilities of CONTRACTOR under this Paragraph are for the benefit of such utility owners and other contractors to the extent that there are comparable provisions for the benefit of CONTRACTOR in said direct contracts between CITY and such utility owners and other contractors. 00700 Construction General Conditions 073009 Page - 42 - of 64 Contract Central C. If the proper execution or results of any part of CONTRACTOR's Work depends upon work performed by others under this Article 7, CONTRACTOR shall inspect such other work and promptly report to CITY in writing any delays, defects or deficiencies in such other work that render it unavailable or unsuitable for the proper execution or results of CONTRACTOR's Work. CONTRACTOR's failure to report same will constitute an acceptance of such other work as fit and proper for integration with CONTRACTOR'S Work, except for latent or non-apparent defects and deficiencies in such other work. 7.02 Coordination A. If CITY contracts with others for the performance of other work on the Project at the Site, the following will be set forth in the Contract: 1. The person, firm or corporation who will have authority and responsibility for coordination of the activities among the various prime contractors will be identified; 2. The specific matters to be covered by such authority and responsibility will be itemized; and 3. The extent of such authority and responsibilities will be provided. B. Unless otherwise provided in the Contract, CITY shall have sole authority and responsibility in respect of such coordination. ARTICLE 8 CITY'S RESPONSIBILITIES 8.01 Communications to CONTRACTOR A. Except as otherwise provided in these General Conditions, CITY shall issue all communications to CONTRACTOR. 8.02 Intentionally Struck 8.03 Furnish Data and Prompt Payment A. CITY shall promptly furnish the data required of OWNER under the Contract Documents and shall make payments to CONTRACTOR when they are due. 8.04 Lands and Easements; Reports and Tests A. CITY'S duties in respect of providing lands and easements and providing engineering surveys to establish reference points are set forth in Paragraphs 4.01 and 4.05. Paragraph 4.02 refers to CITY'S duty to identify and make available to CONTRACTOR copies of reports of explorations and tests of subsurface conditions at the Site and drawings of physical conditions in existing structures at or contiguous to the Site that have been utilized in preparing the Contract Documents. 8.05 Insurance A. CITY'S responsibilities, if any, for purchasing and maintaining liability and property insurance are set forth in Article 5. 8.06 Change Orders A. CITY is obligated to execute Change Orders as indicated in Paragraph 10.03. ConUad Central 00700 Constriction General Cond'dions 073009 Page - 43 - of 64 8.07 Inspections, Tests and Approvals A. CITY's responsibility for certain inspections, tests and approvals is set forth in Paragraph 13.02 F and G. 8.08 Limitations on CITY's Responsibilities A. The CITY shall not supervise, direct or have control or authority over, nor be responsible for, CONTRACTOR's means, methods, techniques, sequences or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of CONTRACTOR to comply with Laws or Regulations applicable to the furnishing or performance of the Work. CITY will not be responsible for CONTRACTOR's failure to perform or furnish the Work in accordance with the Contract Documents. 8.09 Undisclosed Hazardous Environmental Condition A. CITY's responsibility for an undisclosed Hazardous Environmental Condition uncovered or revealed at the Site is set forth in Paragraph 4.06. 8.10 Evidence of Financial Arrangements A. CITY will furnish CONTRACTOR reasonable evidence that financial arrangements have been made to satisfy OWNER's obligations under the Contract. 8.11 CITY's Representative A. CITY will provide a representative during the construction period. The duties, responsibilities and the limitations of authority of the CITY's Representative during construction are set forth in the Contract Documents. 8.12 Visits to Site A. CITY's Representative will make visits to the Site at intervals appropriate to the various stages of construction as CITY's Representative deems necessary in order to observe the progress that has been made and the quality of the various aspects of CONTRACTOR'S executed Work. Based on information obtained during such visits and observations, CITY's Representative will endeavor to determine, in general, if the Work is proceeding in accordance with the Contract Documents. CITY's Representative will not be required to make exhaustive or continuous on-Site inspections to check the quality or quantity of the Work. ARTICLE 9 SUBSCRIBER QUALITY TESTING 9.01 Testing Authorization A. City will randomly select a sample of devices from the CONTRACTOR for the purpose of having such devices tested by an independent laboratory for CONTRACTOR published mil- specifications or certifications. CITY has chosen Aerospace Testing Corporation to perform this testing. Original testing will be performed at the expense of CITY. The radios selected will include a battery and a charger for that specific modellapplication. 1. Device Groups of Radios Requested for Testing- a device group is a single model of radio. i. APX- Single Display ii. APX-Dual Display 00700 Construction General Conditions 073009 Page - 44 - of 64 Contract Central iii. XTS2500 iv. XTS1500 9.02 Order of Testing A. All testing will be conducted in accordance with MIL-STD-810F. Each sample will be subjected to the following tests consecutively in the order listed below. APX- Single and Dual Display i. HighTemperature ii. Low Temperature iii. Humidity iv. Shock (Transit Drop ) v. Immersion' *Following the Immersion Test, the radios are opened in order to inspect for water penetration. 2. XTS1500 & XTS2500 i. HighTemperature ii. Low Temperature iii. Humidity iv. Shock (Transit Drop ) v. Driven Rain 9.03 Successful Testing A. If all testing on the sample radios are successful, CITY will accept testing and provide an environmental test report from Aerospace Testing Corporation to CONTRACTOR. This environmental test report will also be added to this contract via contract modification. 9.04 Unsuccessful Testing A. If any device fails a single or multiple test(s) in a device group, then new testing of all devices within that device group will be conducted and the CONTRACTOR will be responsible for all additional testing of such devices groups. Regardless of which tests or whether multiple tests are failed, additional radios within that device group will be retested in the same format and procedure as the original test. CITY will provide an environmental test report from Aerospace Testing Corporation to CONTRACTOR showing the failures with detail. This failed environmental test report will also be added to this contract via contract modification. B. If any retesting needs to be performed, the CONTRACTOR will be responsible for the costs associated with the initial testing of the entire device group. This will reimburse CITY. C. CONTRACTOR will notify CITY in writing what steps are being taken internally to determine the failed device group radio's root cause of test failure, what steps are being taken internally to correct the problem and if there are any other adjustments that need to be made in order for testing to be successful. D. If all retesting on the sample radios are successful, CITY will accept testing and CONTRACTOR will provide an environmental test report from Aerospace Testing Corporation to CITY. This environmental test report will also be added to this contract via contract modification. 9.05 Continued Unsuccessful Testing 00700 ConsWction General Conditions 073009 Page - 45 - of 64 Contract Central A. If testing is not successful after the first retest, the procedures in 9.04 will be continued until either successful testing is completed or CITY decides to exercise other subscriber options available within the terms of the contract or remove that radio group's devices from this contract and purchase those subscribers from an alternate vendor. If CITY chooses at this point to purchase the subscribers from an alternate vendor, Motorola agrees that no associated discounts will be removed from the current pricing structure based on this decision. ARTICLE 10 CHANGES IN THE WORK 10.01 Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, CITY may, at any time or from time to time, order additions, deletions or revisions in the Work. Such additions, deletions or revisions will be authorized by a Written Amendment, a Change Order, or a Work Change Directive. Upon receipt of any such document, CONTRACTOR shall promptly proceed with the Work involved that will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). B. If CITY and CONTRACTOR are unable to agree on entitlement to, or on the amount or extent, if any, of an adjustment in the Contract Price pursuant to Article 11 or an adjustment of the Contract Times pursuant to Article 12 or both that should be allowed as a result of a Work Change Directive, a Claim may be made therefore as provided in Article 16. 10.02 Unauthorized Changes in the Work A. CONTRACTOR shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified or supplemented as provided in Paragraph 3.04, except in the case of an emergency as provided in Paragraph 6.17 or in the case of uncovering Work as provided in Paragraph 13.04. 10.03 Signing of Change Orders A. CITY and CONTRACTOR shall sign appropriate Change Orders covering: 1. Changes in the Work which are: a. ordered by CITY pursuant to Paragraph 10.01 A; or b. required because of acceptance of defective Work under Paragraph 13.08 or correcting defective Work under Paragraph 13.09; or c. agreed to by the parties; 2. Changes in the Contract Price or Contract Times or both which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive; and 3. Changes in the Contract Price or Contract Times or both which embody the substance of any written decision recommended approved by CITY pursuant to Paragraph 9.06, provided that, in lieu of signing any such Change Order, an appeal may be taken from any such decision in accordance with the provisions of the Contract Documents and applicable Laws or Regulations, but during any such appeal, CONTRACTOR shall carry on the Work and adhere to the progress schedule as provided in Paragraph 6.19. 00700 Construction General Condi0ons 073009 Page - 46 - of 64 Contrail Central 10.04 Notification to Surety A. If notice of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times or both) is required by the provisions of any Bond to be given to a surety, the giving of any such notice will be CONTRACTOR'S responsibility, and the amount of each applicable Bond will be adjusted accordingly. ARTICLE 11 CHANGE OF CONTRACT PRICE 11.01 Change of Contract Price A. The Contract Price constitutes the total compensation (subject to authorized adjustments) payable to CONTRACTOR for performing the Work. All duties, responsibilities and obligations assigned to or undertaken by CONTRACTOR shall be at CONTRACTOR'S expense without change in the Contract Price. B. The Contract Price may only be changed by a Change Order. Any request for an adjustment in the Contract Price shall be based on written notice delivered within fourteen (14) calendar days after occurrence of the event giving rise to the request or within fourteen (14) calendar days after first recognition of the conditions giving rise to the request. Prior notice is not required for requests or claims relating to an emergency endangering life or property as described in Paragraph 6.16. Thereafter, the CONTRACTOR shall submit written documentation of its request, including appropriate supporting documentation, within ten (10) calendar days after giving notice, unless the CITY grants an extension based on good cause shown by the CONTRACTOR that such additional time is warranted. C. The value of any Work covered by a Change Order or of any request for an adjustment in the Contract Price will be determined as follows: 1. where the Work involved is covered by Unit Prices contained in the Contract Documents, by application of such Unit Prices to the quantities of the items involved (subject to the provisions of Paragraph 11.04); or 2. where the Work involved is not covered by Unit Prices contained in the Contract Documents, by a mutually agreed lump sum; or 3. where the Work involved is not covered by Unit Prices contained in the Contract Documents and agreement to a lump sum is not reached under Paragraph 11.01 C.2, on the basis of the Cost of the Work (determined as provided in Paragraphs 11.02 A and B) plus a CONTRACTOR's fee for overhead and profit (determined as provided in Paragraph 11.01 D). D. The CONTRACTOR'S fee allowed to CONTRACTOR for overhead and profit shall be determined as follows: 1. A mutually acceptable fixed fee; or 2. If a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: a. for costs incurred under Paragraphs 11.02 A.1 and 11.02 A.2, the CONTRACTOR's fee shall be ten percent (10%); 00700 Construc0on General Conditions 073009 Page - 47 - of 64 Contrail Central b. for costs incurred under Paragraph 11.02 A.3, the CONTRACTOR's fee shall be five percent (5%); c. where one or more tiers of subcontracts are on the basis of the Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Paragraphs 11.01 D.2 and 11.02 A.1 through A.3 is that the Subcontractor who actually performs or furnishes the Work, at whatever tier, will be a paid a fee of ten percent (10°~) of the costs incurred by such Subcontractor under Paragraphs 11.02 A.1 and 11.02 A.2 and that any higher tier Subcontractor and CONTRACTOR will each be paid a fee of five percent (5°~) of the amount paid to the next lower tier Subcontractor; d. no fee shall be payable on the basis of costs itemized under Paragraphs 11.02 A.4, 11.02 A.5 and 11.02 B; e. the amount of credit to be allowed by CONTRACTOR to CITY for any change which results in a net decrease in cost will be the amount of the actual net decrease in costs plus a deduction in CONTRACTOR's fee by an amount equal to five percent (5°~) of such net decrease; and f. when both additions and credits are involved in any one change, the adjustment in CONTRACTOR's fee shall be computed on the basis of the net change in accordance with Paragraphs 11.01 D.2.a through 11.01 D.2.e, inclusive. E. Whenever the Cost of the Work is to be determined pursuant to Paragraphs 11.02 A and B, CONTRACTOR shall establish and maintain records thereof in accordance with generally accepted accounting practices and submit in form acceptable to CITY an itemized cost breakdown together with supporting data. 11.02 Cost of the Work A. The term "Cost of the Work" means the sum of all costs necessarily incurred and paid by CONTRACTOR in the proper performance of the Work. When the value of any Work covered by a Change Order or when a request for an adjustment in Contract Price is determined on the basis of Cost of the Work, the costs to be reimbursed to CONTRACTOR will be only those additional or incremental costs required because of the change in the Work or because of the event giving rise to the request. Except as otherwise agreed to in writing by CITY, costs covered by Change Orders or requests shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items and shall not include any costs itemized in 11.02 B: 1. Payroll costs for employees in the direct employ of CONTRACTOR in the performance of the Work, using occupational titles and job classifications agreed upon by CITY and CONTRACTOR. Such employees shall include, without limitation, job Site superintendents, foremen and other personnel employed full time at the Site. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits which shall include social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. The expenses of performing the Work after regular working hours, on Saturdays, Sundays or legal holidays, shall be included in the above to the extent authorized by OWNER. 00700 ConsWction General Conditions 073009 Page - 48 - of 64 Contract Central 2. Cost of all materials and equipment furnished and incorporated into the Work, including costs of transportation and storage thereof, and Suppliers' field services required in connection therewith. All cash discounts shall accrue to CONTRACTOR unless CITY deposits funds with CONTRACTOR with which to make payments, in which case the cash discounts shall accrue to CITY. All trade discounts, rebates and refunds and returns from sale of surplus materials and equipment shall accrue to CITY, and CONTRACTOR shall make provisions so that they may be obtained. 3. Payments shall be made by CONTRACTOR to Subcontractors for Work performed or furnished by Subcontractors. 4. Costs of special consultants (including but not limited to engineers, architects, testing laboratories, surveyors, attorneys and accountants) employed for services specifically related to the Work when such services are approved in advance by CITY in writing. 5. Other costs including the following: a. The proportion of necessary transportation, travel and subsistence expenses of CONTRACTOR's employees incurred in discharge of duties connected with the Work. b. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the Site and hand tools not owned by the workers, which are consumed in the performance of the Work, and cost, less market value of such items used but not consumed which remain the property of CONTRACTOR. c. Rentals of all construction equipment and machinery and the parts thereof whether rented from CONTRACTOR or others in accordance with rental agreements approved by CITY, and the costs of transportation, loading, unloading, installation, assembly, dismantling and removal thereof, all in accordance with the terms of said rental agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the Work. d. Applicable sales, consumer, use or similar taxes related to the Work, and for which CONTRACTOR is liable, imposed by Laws or Regulations. e. Deposits lost for causes other than negligence of CONTRACTOR, any Subcontractor or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses required to perform the Work. f. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by CONTRACTOR in connection with the performance and furnishing of the Work (except losses and damages within the deductible amounts of property insurance established by CITY in accordance with Article 5), provided they have resulted from causes other than the negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of CITY. No such losses, damages and expenses shall be included in the Cost of-the Work for the purpose of determining CONTRACTOR's fee. If, however, any such loss or damage requires reconstruction and CONTRACTOR is placed in charge thereof, CONTRACTOR shall be paid for those services a fee proportionate to that stated in Paragraph 11.01 D.2. 00100 ConsWction General Conditions 073009 Page - 49 - of ti4 Contract CenUal g. The cost of utilities, fuel and sanitary facilities at the Site. h. Minor expenses such as telegrams, long distance telephone calls, telephone service at the Site, expressage and similar petty cash items in connection with the Work. i. Cost of premiums for additional or increased Bonds, or for insurance required because of approved changes in the Work. B. Costs excluded: The term "Cost of the Work" shall not include any of the following: 1. Payroll costs and other compensation of CONTRACTOR'S officers, executives, principals (of partnership and sole proprietorships), general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks and other personnel employed by CONTRACTOR whether at the Site or in CONTRACTOR'S principal or a branch office for general administration of the Work (if not specifically included in the agreed upon occupational titles and job classifications referred to in Paragraph 11.02 A.1 or specifically covered by Paragraph 11.02 A.4), all of which are to be considered administrative costs covered by the CONTRACTOR's fee. 2. Expenses of CONTRACTOR's principal and branch offices other than CONTRACTOR's office at the Site. 3. Any part of CONTRACTOR's capital expenses, including interest on CONTRACTOR'S capital employed for the Work and charges against CONTRACTOR for delinquent payments. 4. Costs due to the negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective Work, disposal of materials, or equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraph 11.02 A. 11.03 Cash Allowances A. It is understood that CONTRACTOR has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be furnished and performed for such sums as may be acceptable to CITY. CONTRACTOR agrees that: 1. the allowances include the cost to CONTRACTOR (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and 2. CONTRACTOR's costs for unloading and handling on the Site, labor, installation costs, overhead, profit and other expenses contemplated for the allowances have been included in the Contract Price and not in the allowances, and no demand for additional payment on account of any of the foregoing will be valid. B. Prior to final payment, an appropriate Change Order will be issued by CITY to reflect actual amounts due CONTRACTOR on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. 00700 Construction General Conditions 073009 Page - 50 - of 64 Contract Central 11.04 Unit Price Work A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the established unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Contract. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by CONTRACTOR will be made in accordance with Paragraph 9.06. B. Each unit price will be deemed to include an amount considered by CONTRACTOR to be adequate to cover CONTRACTOR'S overhead and profit for each separately identified item. C. CITY or CONTRACTOR may negotiate an adjustment of the price per unit of Unit Price Work stated in the Contract if: 1. The quantity of any item of Unit Price Work performed by CONTRACTOR differs by twenty percent (20%) or more from the estimated quantity of such item indicated in the Contract; and 2. There is no corresponding adjustment with respect to any other item of Work; and 3. CONTRACTOR believes that CONTRACTOR is entitled to an increase in Contract Price as a result of having incurred additional expense or CITY believes that CITY is entitled to a decrease in Contract Price. 11.05 Dispute Resolution A. If CITY and CONTRACTOR are unable to agree on entitlement to, or magnitude of, an equitable adjustment in the Contract Price in accordance with Article 11 within fourteen (14) calendar days from the receipt of supporting documentation of the request pursuant to 11.01.6., unless the CITY grants an extension based on good cause shown by the CONTRACTOR that such additional time is warranted, then a Claim for such adjustment may be made pursuant to Article 16. ARTICLE 12 CONTRACT TIMES 12.01 Time of the Essence A. All times stated in the Contract Documents are of the essence of the Contract. 12.02 Change of Contract Times A. The Contract Times (or Milestones) may only be changed by a Change Order. Any request for an adjustment in the Contract Times shall be based on written notice delivered within fourteen (14) calendar days after occurrence of the event giving rise to the request or within fourteen (14) calendar days after first recognition of the conditions giving rise to the request. Thereafter, the CONTRACTOR shall submit written documentation of its requests, including appropriate supporting documentation, within ten (10) days after giving notice, unless the CITY grants an extension based on good cause shown by the CONTRACTOR that such additional time is warranted. 12.03 Proof Required To Justify an Extension of Time for Excusable and Compensable Delays 00700 Constnrction General Conditions 073009 Page - 51- o(64 Contract Central A. In support of any request for an extension of the Contract Times pursuant to this Article, CONTRACTOR must demonstrate to the reasonable satisfaction of the CITY that the critical path of the approved baseline project schedule was delayed. CONTRACTOR shall be entitled to an increase in contract time for the number of days that the critical path was delayed solely as a result of the compensable or excusable event. A compensable or excusable event includes, but is not limited to: 1. Unreasonable delay of issuance of Notice to Proceed by CITY; 2. CITY's unreasonable delay of delivery furnished materials, equipment, or work; 3. Unreasonable delay responding to shop drawings and submittals; 4. CITY's unreasonable delay in issuing a Change Order; 5. An order by the CITY to stop the Work where the CONTRACTOR was not at fault; and 6. Other reasonable grounds as determined by the City in its sole discretion. B. CONTRACTOR shall compare the critical path of the approved baseline project schedule to the actual critical path of the Work, identifying the specific impact of the compensable or excusable event. C. CONTRACTOR shall submit to the CITY a written time impact analysis illustrating the influence of each compensable or excusable event on the date of Substantial Completion. The time impact analysis shall demonstrate the time impact based on the date of the delay in time and the event time computations or all affected activities. D. If the critical path of the Work is delayed by "Force Majeure", the CONTRACTOR shall be entitled only to an extension of the Contract Times for the number of days of delay to the critical path. For purposes of this Paragraph, "Force Majeure" shall mean fire, tornado, flood, earthquake, war, act of terrorism, civil disturbance, or labor strikes away from the project site. E. Extensions of contract time pursuant to this Paragraph will be granted only to the extent that the time adjustments exceed the total float time available when the event causing the delay occurred. 12.04 Delays within CONTRACTOR's control A. The Contract Times (or Milestones) will not be extended due to delays within the control of CONTRACTOR. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of CONTRACTOR. 12.05 Delays Beyond the CITY's and CONTRACTOR's Control A. Where CONTRACTOR is prevented from completing any part of the Work within the Contract Times (or Milestones) due to delay beyond the control of both CITY and CONTRACTOR, an extension of the Contract Times (or Milestones) in an amount equal to the time lost due to such delay shall be CONTRACTOR'S sole and exclusive remedy for such delay. 00700 Construction General Conditions 073009 Page - 52 - of 64 Contract Central 12.06 Delay Damages A. In no event shall CITY be liable to CONTRACTOR, any Subcontractor, any Supplier, any other person or organization, or to any surety for or employee or agent of any of them, for damages arising out of or resulting from: 1. Delays caused by or within the control of CONTRACTOR, or 2. Delays beyond the control of CITY or CONTRACTOR including but not limited to fires, floods, epidemics, abnormal weather conditions, acts of God or acts or neglect by utility owners or other contractors performing other work as contemplated by Article 7. B. Nothing in this Paragraph 12.06 bars a change in Contract Price pursuant to this Article 12 to compensate CONTRACTOR due to delay, interference, or disruption directly attributable to actions or inaction of CITY, Consultant or anyone for whom CITY or Consultant is responsible. C. Liquidated Damages shall be assessed to the CONTRACTOR in the amount of $2,000.00 for each day of schedule delay beyond the agreed to System Acceptance date, excluding delays due to Force Majeure or the CITY. The total Liquidated Damages shall not exceed two percent (2%) of the total contract price, and if the CITY opts to assess Liquidated Damages, then such shall be the sole remedy for delays beyond the agreed to System Acceptance date. 12.07 Dispute Resolution A. If CITY and CONTRACTOR are unable to agree on entitlement to, or magnitude of, an equitable adjustment in the Contract Time in accordance with Article 12 within fourteen (14) calendar days from the receipt of supporting documentation of the request pursuant to 12.02, unless the CITY grants an extension based on good cause shown by the CONTRACTOR that such additional time is warranted, then a Claim for such adjustment may be made pursuant to Article 16 or the CITY may assess Liquidated Damages against CONTRACTOR pursuant to Paragraph 12.06. ARTICLE 13 TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 13.01 Access to Work A. CITY, Consultants, other representatives and personnel of CITY, independent testing laboratories and governmental agencies with jurisdictional interests will have access to the Site and Work at reasonable times for their observation, inspecting and testing. CONTRACTOR shall provide them proper and safe conditions for such access and advise them of CONTRACTOR's Site safety procedures and programs so that they may comply therewith as applicable. 13.02 Tests and Inspections A. CONTRACTOR shall give CITY's Representative timely notice of readiness of the Work for all required inspections, tests or approvals, and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. B. If any Work (or the work of others at the Site) that is to be inspected, tested or approved is covered by CONTRACTOR without written approval required by Paragraphs 13.02 D or 13.02 E, it must, if requested by CITY's Representative, be uncovered for observation. 00700 Construction General Conditions 073009 Page - 53 - of li4 Contract Central C. Uncovering Work as provided in Paragraph 13.02 B, shall be at CONTRACTOR's expense unless CONTRACTOR has given CITY's Representative timely notice of CONTRACTOR's intention to cover the same and CITY's Representative have not acted with reasonable promptness in response to such notice. D. If Laws or Regulations of any public body (including City) having jurisdiction require any Work (or part thereof) specifically to be inspected, tested or approved by an employee or other representative of such public body, CONTRACTOR shall assume full responsibility for arranging and obtaining such inspections, tests or approvals, pay all costs in connection therewith, and furnish CITY's Representative the required certificates of inspection or approval. E. CONTRACTOR shall be responsible for arranging and obtaining and shall pay afl costs in connection with any inspections, tests or approvals required for CITY's acceptance of materials or equipment to be incorporated into the Work, or acceptance of materials, mix designs, or equipment submitted for approval prior to CONTRACTOR's purchase thereof for incorporation into the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to CITY. F. Acceptance testing shall be preformed prior to final system acceptance by the CITY and final acceptance will only occur upon the successful passage of such tests. All test equipment required for acceptance testing and proof of performance shall be provided by the CONTRACTOR. The CITY may, at its expense, have the test equipment used by the CONTRACTOR for acceptance testing certified as accurate by an independent testing laboratory or by the equipment manufacturer both before and after such testing. If the test equipment is not certified as accurate, then the acceptance tests may be considered unsuccessfully completed. G. The City reserves the right to inspect the CONTRACTOR's facilities to ensure the CONTRACTOR'S competence and ability to perform the specified work. An inspection conducted pursuant to this Subparagraph shall be of only those items or materials that CITY has purchased or is under contract for purchase pursuant to the Contract, shall be at the CITY's expense and shall be conducted during normal business hours. 13.03 Notice of Defects A. Prompt notice of all defective Work of which CITY has actual knowledge will be given to CONTRACTOR. Defective Work may be rejected, corrected or accepted as provided in this Article 13. 13.04 Uncovering Work A. If any Work (or the work of others at the Site) is covered contrary to the written request of CITY's Representative, it must, if requested by CITY's Representative, be uncovered for CITY's Representative's observation and replaced at CONTRACTOR's expense. 13.05 CITY May Stop the Work A. If the Work is defective, or CONTRACTOR fails to supply sufficient skilled workers or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to the Contract Documents, CITY may order CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of CITY to stop the Work shall not give rise to any duty on the part of CITY to 00700 Construction General Conditions 073009 Page - 54 - of 64 Contract Central exercise this right for the benefit of CONTRACTOR, any Subcontractor, Supplier, other individual or entity or any surety or employee or agent of any of them. 13.08 Correction or Removal of Defective Work A. If required by CITY, CONTRACTOR shall promptly, as directed, either correct all defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by CITY's Representative, remove it and replace it with Work that is not defective. CONTRACTOR shall pay all costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) caused by or resulting from such correction or removal (including but not limited to all costs of repair or replacement of work of others). 13.07 INTENTIONALLY DELETED 13.08 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, CITY prefers to accept it, CITY may do so. CONTRACTOR shall pay all costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to CITY's evaluation of and determination to accept such defective Work and shall pay OWNER for the diminished value of the Work. If any such acceptance occurs prior to final payment, a Change Order will be issued incorporating the necessary revisions into the Contract Documents with respect to the Work and, due to the diminished value of the Work, CITY shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount thereof, CITY may make a Claim therefore as provided in Article 16. If the acceptance of defective Work occurs after such recommendation, an appropriate amount shall be paid by CONTRACTOR to CITY. 13.09 CITY May Correct Defective Work A. If CONTRACTOR fails within a reasonable time after written notice from CITY's Representative to correct defective Work or to remove and replace rejected Work as required by CITY in accordance with Paragraph 13.06, or if CONTRACTOR fails to perform the Work in accordance with the Contract Documents, or if CONTRACTOR fails to comply with any other provision of the Contract Documents, CITY may, after seven (7) days written notice to CONTRACTOR, correct and remedy any such deficiency. B. CITY shall proceed expeditiously when exercising the rights and remedies under this Paragraph 13.09. In connection with such corrective and remedial action, CITY may exclude CONTRACTOR from all or part of the Site; take possession of all or part of the Work and suspend CONTRACTOR's services related thereto; take possession of CONTRACTOR'S tools, appliances, construction equipment and machinery at the Site; and incorporate into the Work all materials and equipment stored at the Site or for which CITY has paid CONTRACTOR but which are stored elsewhere. CONTRACTOR shall allow CITY, CITY's Representative, agents and employees, CITY's other contractors, and Consultants access to the Site to enable CITY to exercise the rights and remedies under this Paragraph 13.09. C. All costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by CITY in exercising such rights and remedies will be charged against CONTRACTOR and a Change Order will be issued incorporating the necessary revisions into the Contract Documents with respect to the Work; and CITY shall be 00700 Construction General Conditions 073009 Page - 55 - of 64 Contract Central entitled to an appropriate decrease in the Contract Price. If CITY and CONTRACTOR are unable to agree as to the amount thereof, CITY may make a Claim therefore as provided in Article 16. Such Claims for costs, losses and damages will include but not be limited to all costs of repair or replacement of work of others destroyed or damaged by correction, removal and replacement of CONTRACTOR'S defective or rejected Work. D. CONTRACTOR shall not be allowed an extension of the Contract Times (or Milestones) because of any delay in the performance of the Work attributable to the exercise by CITY of CITY's rights and remedies under Paragraphs 13.06 and 13.09. 13.10 System Acceptance A. Commencement of Acceptance Testing. CONTRACTOR will provide to CITY at least ten (10) business days notice before the Acceptance Tests commence. System testing will occur only in accordance with the Acceptance Test Plan. B. System Acceptance. System Acceptance will occur upon successful completion of the Acceptance Tests. Upon System Acceptance, the Parties will memorialize this event by promptly executing a System Acceptance Certificate. If the Acceptance Test Plan includes separate tests for individual Subsystems or phases of the System, acceptance of the individual Subsystem or phase will occur upon the successful completion of the Acceptance Tests for the Subsystem or phase, and the Parties will promptly execute an acceptance certificate for the Subsystem or phase. If CITY believes the System has failed the completed Acceptance Tests, CITY will provide to CONTRACTOR a written notice that includes the specific details of the failure. Minor omissions or variances in the System that do not materially impair the operation of the System as a whole will not postpone System Acceptance or Subsystem acceptance, but will be corrected according to a mutually agreed schedule. C. Beneficial Use. CITY acknowledges that CONTRACTOR's ability to perform its implementation and testing responsibilities may be impeded if CITY begins using the System before System Acceptance. Therefore, CITY will not commence Beneficial Use before System Acceptance without CONTRACTOR's prior written authorization, which will not be unreasonably withheld. CONTRACTOR is not responsible for System performance deficiencies that occur during unauthorized Beneficial Use. Upon commencement of Beneficial Use, CITY assumes responsibility for the use and operation of the System. D. Final Project Acceptance. Final Project Acceptance will occur after System Acceptance when all deliverables and other work have been completed. When Final Project Acceptance occurs, the parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate. ARTICLE 14 COMPLETION 14.01. Partial Utilization A. Use by CITY at CITY's option of any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which CITY and CONTRACTOR agree constitutes a separately functioning and usable part of the Work that can be used by CITY for its intended purpose without significant interference with CONTRACTOR's performance of the remainder of the Work, may be accomplished prior to System Acceptance subject to the following: 1. CITY at any time may request CONTRACTOR in writing to permit CITY to use any 00700 ConsWc6on General Conditans 073009 Page - 56 - of 64 Contract Central such part of the Work which CITY believes to be ready for its intended use and substantially complete. If CONTRACTOR agrees that such part of the Work is substantially complete, CONTRACTOR will certify to CITY that such part of the Work is substantially complete and request CITY to issue a certificate of System Acceptance or Subsystem Acceptance for that part of the Work. CONTRACTOR at any time may notify CITY in writing that CONTRACTOR considers any such part of the Work ready for its intended use and substantially complete and request CITY to issue a certificate of System Acceptance or Subsystem Acceptance for that part of the Work. Within a reasonable time after either such request, CITY, together with CONTRACTOR, shall make an inspection of that part of the Work to determine its status of completion. If CITY considers that part of the Work to be substantially complete, the provisions of Paragraph 14.04 will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. 2. No occupancy or separate operation of part of the Work will be accomplished prior to compliance with the requirements of Paragraph 5.10 with respect to property insurance. 14.02 Final Inspection A. Upon written notice from CONTRACTOR that the entire Work or an agreed portion thereof is complete, CITY will make a final inspection with CONTRACTOR and will notify CONTRACTOR in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. CONTRACTOR shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 14.03 Final Completion Delayed A. If, through no fault of CONTRACTOR, final completion of the Work is significantly delayed, CITY shall, upon receipt of CONTRACTOR's final Application for Payment, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. 14.04 Completion of Work by CITY A. If CITY must complete the Work, all costs and charges incurred by CITY, together with the cost of completing the Work under the Contract, will be deducted from any monies due or which may become due CONTRACTOR. If such expense exceeds the sum which would have been payable under the Contract, then CONTRACTOR and the surety shall be liable and shall pay to CITY the amount of such excess. 14.05 Training Any training to be provided by CONTRACTOR to CITY will be described in the Statement of Work. CITY will provide Motorola with ten (10) days notice if a date change for a scheduled training program is required. ARTICLE 15 SUSPENSION OF WORK AND TERMINATION 15.01 CITY May Suspend Work A. Notwithstanding any other provision of this Contract, at any time and without cause, and at is sole and absolute discretion, CITY, may suspend the Work or any portion of the Work by written notice to CONTRACTOR, which will initially fix the date on which Work will be resumed. CONTRACTOR shall resume the Work on the date so fixed in the notice unless the date is 00700 Constnrc0on General Conditions 073009 Page - 57 - of li4 Contract Central changed by a subsequent written notice from CITY. CONTRACTOR may be allowed an adjustment in the Contract Price or an extension of the Contract Times, or both, directly attributable to any suspension if CONTRACTOR makes a Claim therefore in accordance with Article 16. B. CONTRACTOR will not be allowed an adjustment in the Contract Price or an extension of the Contract Times if CITY suspends the Work because CONTRACTOR's acts or omissions create or cause an emergency that CITY believes affects the safety or protection of persons, the Work, or property at the Site or adjacent thereto. CITY may order CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been adequately addressed by CONTRACTOR; however, this right of CITY to stop the Work shall not give rise to any duty on the part of CITY to exercise this right for the benefit of CONTRACTOR, any Subcontractor, Supplier, other individual or entity or any surety or employee or agent of any of them. 15.02 CITY May Terminate for Default A. Contractor may be deemed in default and CITY may terminate the services of CONTRACTOR upon the occurrence of any one or more of the following events: 1. CONTRACTOR fails to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the progress schedule established under Paragraph 2.06 and 2.07 as adjusted from time to time pursuant to Paragraphs 6.04, 6.05, 12.02 and 12.03); 2. CONTRACTOR abandons the Work or declares its intention to abandon the work; 3. CONTRACTOR assigns or attempts to assign its rights or obligations under this Contract or any part thereof to any third party without the prior written consent of CITY; 4. CONTRACTOR fails to make prompt payment duly owing to any subcontractor or material supplier within thirty (30) calendar days after payment was due; 5. CONTRACTOR fails to achieve the required dates of substantial and final completion; 6. CONTRACTOR disregards Laws or Regulations of any public body having jurisdiction; 7. CONTRACTOR disregards the authority of OWNER; or 8. CONTRACTOR otherwise violates in any substantial way any provisions of the Contract Documents. B. CITY may, after giving CONTRACTOR (and the surety) seven (7) days written notice and to the extent permitted by Laws or Regulations, terminate the services of CONTRACTOR, exclude CONTRACTOR from the Site and take possession of the Work and of all CONTRACTOR'S tools, appliances, construction equipment and machinery at the Site and use the same to the full extent they could be used by CONTRACTOR (without liability to CONTRACTOR for trespass or conversion), incorporate into the Work all materials and equipment stored at the Site or for which CITY has paid CONTRACTOR but which are stored elsewhere, and finish the Work as CITY may deem expedient. In such case, CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds all costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and alf court or arbitration or other dispute resolution costs) sustained by CITY arising out of or resulting from 00700 Construction General Conditions 073009 Page - 58 - of 64 Contract Central completing the Work, such excess may be paid to CONTRACTOR. If such costs, losses and damages exceed such unpaid balance, CONTRACTOR shall pay the difference to CITY within fourteen (14) calendar days of CITY'S demand for payment. When exercising any rights or remedies under this Paragraph CITY shall not be required to competitively bid this work unless required by law. C. Where CONTRACTOR'S services have been so terminated by CITY, the termination will not affect any rights or remedies of CITY against CONTRACTOR then existing or which may thereafter accrue. Any retention or payment of moneys due CONTRACTOR by CITY will not release CONTRACTOR from liability. D. If, after a default termination, it is determined that the CONTRACTOR was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the CITY. The CITY shall then be liable to CONTRACTOR for only those costs enumerated in Paragraph 15.03. 15.03 CITY May Terminate for Convenience A. Notwithstanding any other provision of this Contract, upon thirty (30) calendar days written notice to CONTRACTOR, CITY may, at its sole and absolute discretion, without cause and without prejudice to any other right or remedy of CITY, elect to terminate the Contract. In such case, CONTRACTOR shall, with thirty (30) calendar days of receiving notice of termination under this Paragraph, submit to CITY its statement of costs and expenses and shall be paid: 1. For completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. For expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; 3. For all costs, losses and damages incurred in settlement of terminated contracts with Subcontractors, Suppliers and others; and 4. For reasonable expenses directly attributable to termination if approved in advance by CITY. B. CONTRACTOR shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. C. CONTRACTOR waives any costs not submitted to CITY pursuant to Paragraph 15.03.A. D. CITY shall, within thirty (30) calendar days after receipt of CONTRACTOR's statement, pay CONTRACTOR all amounts it determines are properly determined. ARTICLE 16 CLAIMS AND DISPUTES 16.01 Definition A. A Claim is a demand or assertion by the CONTRACTOR seeking, as a matter of right, the adjustment of Contract price and/or times with respect to the terms of the Contract. 16.02 Written Notice and Burden of Proof 00100 Constriction General Conditions 073009 Page - 59 - of fi4 Contract Central A. Claims must be made by written notice pursuant to Article 17.01. The written notice shall clearly indicate that the CONTRACTOR is making a claim. The responsibility to substantiate Claims shall rest with the CONTRACTOR. No Claim may be made under this Contract except as provided in this Article. B. Certification of Claim: The written notice of Claim shall include the following statement signed by the CONTRACTOR'S representative: "The CONTRACTOR certifies that all statements made and the facts set out in this claim are true and correct and that no false records have been submitted in support of this claim." Strict compliance with this Paragraph shall be a condition precedent to the creation, existence or validity of any Claim. 16.03 Time Limits on Claims A. The CONTRACTOR must give notice to the CITY within fourteen (14) calendar days after the denial of a request for or failure to reach an agreement on a change in Contract Price and/or change in Contract Time pursuant to Article 11 and Article 12 respectively. After the fourteen (14) day period for making Claims has expired, the Claim shall be considered waived. B. The CONTRACTOR shall submit the Claim to the CITY's Representative 16.04 Continuing Contract Performance A. Pending final resolution of a Claim, unless otherwise agreed in writing, the CONTRACTOR shall proceed diligently with performance of the Work and the CITY shall continue to make payments in accordance with the Contract Documents. The CITY may, but is not obligated to, notify the Surety of the nature and amount of the Claim. 16:05 Injury or Damage to Person or Property A. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, of any of the other party's employees or agents, or of others for whose acts that party is legally liable, written notice of the injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding thirty (30) days after first observance. The notice shall provide sufficient detail to enable the other party to investigate the matter. 16.06 Initial Resolution of Claims and Disputes A. After the CONTRACTOR has submitted the Claim to the CITY'S Representative, the CITY'S Representative and CONTRACTOR'S Representative shall conduct a settlement conference within fourteen (14) calendar days from the date of receipt of the Claim. If the Claim is not settled within seven (7) calendar days following the date of the settlement conference, the CITY'S Representative and the CONTRACTOR's Representative shall state, in writing, following the conclusion of the seven (7) calendar day period, their respective position as to the matters in dispute. B. The CITY'S and CONTRACTOR'S statement of positions shall state all known factual grounds for each party's position. If the dispute remains unresolved at the end of the seven (7) calendar days from submission of the parties' written position statements, the CONTRACTOR shall have the right to proceed with the pursuit of Claims pursuant to Paragraph 16.07. C. If a Claim has been resolved, the OWNER will prepare or obtain appropriate documentation. 16.07 Final Resolution of Claims and Disputes 00700 Conshuction General Conditions 073009 Page - 60 - o(64 Contract CenUal A. All administrative procedures set forth in this contract must first be exhausted before suit is filed. B. If the CITY'S Representative and the CONTRACTOR'S Representative are unable to resolve the dispute pursuant to 16.06, the parties must submit their statements of position to the Director, who shall review the Claim and make a decision within fourteen (14) calendar days. C. Absent fraud, gross mistake or bad faith, the Director's decision shall be final and binding on CITY and CONTRACTOR within fourteen (14) calendar days after issuance. The CONTRACTOR shall give written notice to the CITY stating its intent to submit its Claim to a court of law pursuant to paragraph 17.05.A. within thirty (30) calendar days after notice of Director's decision. D. The time frames for the Director's decision and for CONTRACTOR'S written notice of intent may be tolled by participation in voluntary mediation. Mediator selection and the procedures to be employed in voluntary mediation shall be mutually acceptable to the parties. Costs of the mediator shall be shared equally among the parties participating in the mediation. In no event shall any time frame be tolled more than 30 days for mediation. However, mediation may be employed at any time at the discretion and mutual agreement of the parties. E. If the dispute is not resolved during voluntary mediation, The CONTRACTOR agrees that it will file no suit based on facts or evidentiary materials that were not presented for consideration to the CITY during the mediation process or of which the CONTRACTOR had knowledge and failed to present during the administrative procedures. ARTICLE 17 MISCELLANEOUS 17.01 Giving Notice A. Whenever any provision of the Contract Documents requires the giving of written notice, it will be given by personal delivery, by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice or by confirmed electronic facsimile transmission or by overnight courier with a receipt. Notice is effective on the date of personal delivery, deposit of registered or certified mail, postage prepaid, or confirmed electronic facsimile transmission. B. Notice for the CITY will be given to: Chris Skinrood 2990 Northwest vvion Road Riverside, MO 64150 Phone: 816-741-1191 David Blackburn City Administrator 2950 Northwest Vvian Road Riverside, MO 64150 Phone: 816-741-3993 C. Notice for the CONTRACTOR wiA be given to: Mike R~IIa 9401 Indian Creek Parkway, Ste. 560 Overland Park, KS 66210 Michael.V.Re ells Motorola.com one: Legal notlas win be yiwn to: Motorola, Inc. Attention: Bruce Marley, Law Department 6450 Sequence Drive San Diego, CA 92130 Email: Bruce.MarlevCrDMotorola.com 17.02 Computation of Times A. When any period of time is referred to In the Contract Documents by days, it w~l be computed to exclude the first and include the last calendar day of such period. If the last day of such period hlia on a Saturday or Sunday or on a day made a sties holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. 17.03 Cumulative Remedies A. The duties and obligations imposed by these General Condkiona and the rights and romedies available hereunder to the parties heroto, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon CONTRACTOR and all of the rights and romedies available to CITY hereunder aro in addition to, and aro not to be construed in arty way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Lawa or Regulations, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this Paragraph will be as effective as if ropeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. 17.04 Survival of Obligations A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents will surv'~ve final payment, completion, ahd acceptance of the Work or termination or completion of the Contract. 17.Oti Controlling Law A. This Contract shall be construed and governed in accordance with the laws of the State of Missouri without giving effect to Missouri's choice of law provisions. The CITY and CONTRACTOR: (1) submit to the jurisdiction of the state and hderal courts kxated in Jackson County, Missouri; (2) waive any and all objections to jurisdiction and venue; and (3) will not raise forum non conveniena as an objection to the location of any litigation. 17.06. Assignability and Subcontracting A. Neither Party may assign this Agreement without the prior written consent of the other Party, except that CONTRACTOR may assign this Agreement to arty of its affiliates or its right to receive payment without the prior consent of CITY. CONTRACTOR may subcontract any of the work, but subcontracting will not relieve CONTRACTOR of its duties under this Agreement. 17.07. Entire Agreement 00700 Constriction General Conditans 073009 Page - 62 - of 64 Contract Central A. This Agreement, including all Exhibits and Attachments, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties. The preprinted terms and conditions found on any CITY purchase order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even if a representative of each Party signs that document. 17.08. Authority to Execute Agreement A. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. 17.09 Confidentiallnformation A. During the term of this Agreement, the parties may provide each other with Confidential Information. Each Party will: maintain the confidentiality of the other Party's Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential Information to its employees who have a "need to know" and not copy or reproduce the Confidential Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential Information, including informing its employees who handle the Confidential Information that it is confidential and is not to be disclosed to others, but these precautions will be at least the same degree of care that the receiving Party applies to its own confidential information and will not be less than reasonable care; and use the Confidential Information only in furtherance of the performance of this Agreement. Confidential Information is and will at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the Confidential Information is given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement. B. The parties recognize that as a governmental entity the CITY is subject to Missouri's Sunshine Law, found in Sections 610.010 through 610.035, RSMo, mandating that CITY records be open to the public unless a specific exception exists allowing a record to be closed. If the CITY receives a request for a record containing confidential information that it determines cannot be closed pursuant to the exceptions granted in Section 610.021, RSMo, the CITY will promptly notify the CONTRACTOR and CITY will not release such record for a period of 10 calendar days during which time CONTRACTOR may exercise its rights before a court of competent jurisdiction to have such record closed. 17.10. Preservation of CONTRACTOR'S Proprietary Rights A. CONTRACTOR, the third party manufacturer of any Equipment, and the copyright owner of any Non-CONTRACTOR Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by CONTRACTOR in connection with providing to CITY the Equipment, Software, or related services remain vested exclusively in CONTRACTOR, and this Agreement does not grant to CITY any shared development rights of intellectual property. Except as explicitly provided in the Software License Agreement, CONTRACTOR does not grant to CITY, either directly or by implication, estoppel, or otherwise, any right, title or interest in CONTRACTOR's Proprietary 00700 ConsWction General Conditions 073009 Page - 63 - of li4 Contrail Central Rights. CITY will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or cr®ate derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell or export the Software, or permit or encourage any third party to do so. The preceding sentence does not apply to Open Source Software which is governed by the standard license of the copyright owner 17.11 limitation of Liability Except for personal injury or death, the CONTRACTOR's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law with respect to which losses or damages are claimed, but not to exceed the total Contract value. Although the parties acknowledge the possibility of such losses or damages, they agree that the CONTRACTOR will not be liable for any commercial loss; inconvenience; time, good will, revenues, profits or savings; or other special, incidental, indirect, or consequential damages in any way related to or arising from this Contract, the sale or use of the equipment or software, or the performance of services by the CONTRACTOR pursuant to this Contract. Notwithstanding any disclaimers or limitations on consequential damages in this Section, Motorola shall remain liable for any damage to third- party equipment or sites that are part of the scope of work of this project, to the extent that such damage is caused by Motorola's negligence. This limitation of liability provision survives the expiration or termination of this Contract and applies notwithstanding any contrary provision. No action for contract breach or otherwise relating to the transactions contemplated by this Contract may be brought more than five (5) years after the accrual of the cause of action, except for money due upon an open account. Section 18, Authorized Employees Contractor acknowledges that Section 285.530 RSMo, prohibits any business entity or employer from knowingly employing, hiring for employment, or continuing to employ an unauthorized alien to perform work within the State of Missouri. Contractor therefore covenants that it is not knowingly in violation of subsection I of Section 285.530 RSMo, and that it will not knowingly employ, hire for employment, or continue to employ any unauthorized aliens to perform work on the Proiect, and that its employees are lawfully eligible to work in the United States. Section 19, Safety Training a. Contractor shall provide a ten (10) hour Occupational Safety and Health Administration (OSHA) construction safety program for all employees who will be on-site at the Project. The construction safety program shall include a course m construction safety and health that is approved by OSI-IA 01 a similar program approved by the Missouri Department of Labor and Industrial Relations which is at least as stringent as an approved OSHA program as required by Section 292.675 RSMo. b. Contractor shall require its onsite employees to complete a construction safety program within sixty (60 days after the date work on the Project commences. Contractor acknowledges and agrees that any of Contractor's employees found on the Proiect site without documentation or the successful completion of a construction safety program shall be required to produce such documentation within twenty (p0) days, or will be subject to removal from the Project. c. Contractor shall require all of its Subcontractors to comply with the requirements of this Section and Section 292.675 RSMo. Section 20 Notice of Penalties for Failure to Provide Safety Training a. Pursuant to Section 292.675, RSMO, Contractor shall forfeit to City as a penalty two thousand five hundred dollars ($2,500.00), plus one hundred dollars ($100.00) for each on-site employee employed by Contractor or its Subcontractor, for each calendar day, or portion thereof, such on-site employee is employed without the construction safety training regwred m Section 19 above. b. The penalty described in Subsection a) of this Section shall not begin to accrue until the time periods described in Sections b) and c) above have elapsed. Violations of Section19 above and imposition of the penalty described in this Section shall be investigated and determined by the Missouri Department of Labor and industrial Relations. 00700 Construction General Conditions 073009 Page - 64 - of 64 Caitract Central SOFTWARE LICENSE AGREEMENT This Software License Agreement ("Agreement") is between Motorola, Inc. ("Motorola") and the City of Riverside, Missouri ("Licensee"). For good and valuable consideration, the parties agree as follows: Section 1 DEFINITIONS 1.1 "Designated Products" means products provided by Motorola to Licensee with which or for which the Software and Documentation is licensed for use. 1.2 "Documentation" means product and software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which such information is provided). 1.3 "Open Source Software" means software with either freely obtainable source code, license for mod cation, or permission for free distribution. 1.4 "Open Source Software License" means the terms or conditions under which the Open Source Software is licensed. 1.5 "Primary Agreement" means the Contract for P-25 compliant radio network services between the parties the execution of which was contemporaneous, or nearly contemporaneous, with the execution of this Software Licensing Agreement. 1.6 "Security Vulnerability' means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach such that data is compromised, manipulated or stolen or the system damaged. 1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de- compilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement. Section 2 SCOPE Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary Software or products containing embedded or pre-loaded proprietary Software, or both. This Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee's use of the Software and Documentation. Section 3 GRANT OF LICENSE 3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants to Licensee a personal, limited, non-transferable (except as permitted in Section 7) and non- exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code. 3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the terms and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine whether any Open Source Software is provided under this Agreement; (ii) identify the Open Source Software and provide Licensee a copy of the applicable Open Source Software License (or specify where that license may be found); and, (iii) provide Licensee a copy of the Open Source Software source code, without charge, if it is publicly available (although distribution fees may be applicable). Section 4 LIMITATIONS ON USE 4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting the general nature of these restrictions, Licensee will not make the Software available for use by third parties on a "time sharing," "application service provider," or "service bureau" basis or for any other similar commercial rental or sharing arrangement. 4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer, disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant any sublicense or other rights in the Software or Documentation to any third party, or take any action that would cause the Software or Documentation to be placed in the public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, back- up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software. 4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (ii) copy onto or transfer Software installed in one unit of a Designated Product onto another device. Licensee may temporarily transfer Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary transfer is discontinued. 4.4. When using Motorola's Radio Service Software ("RSS"), Licensee must purchase a separate license for each location at which Licensee uses RSS. Licensee's use of RSS at a licensed location does not entitle Licensee to use or access RSS remotely. Licensee may make one copy of RSS for each licensed location. Licensee shall provide Motorola with a list of all locations at which Licensee uses or intends to use RSS upon Motorola's request. 4.5. Licensee will maintain, during the term of this Agreement and for a period of two years thereafter, accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an independent third party ("Auditor") may inspect Licensee's premises, books and records, upon reasonable prior notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this Agreement. Section 5 OWNERSHIP AND TITLE Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Software and Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de-compilations, disassemblies, emulations to or derivative works from the Software or Documentation, whether made by Motorola or another party, or any improvements that result from Motorola's processes or, provision of information services). No rights are granted to Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing the Software, Designated Products, Documentation or related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights. Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY 6.1. The commencement date and the term of the Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the "Warranty Period"). If Licensee is not in breach of any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted, error-free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee's particular requirements. Motorola makes no representations or warranties with respect to any third party software included in the Software. 6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct sign cant, demonstrable program or documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola's option, Motorola will replace the defective Software with functionally-equivalent Software, license to Licensee substitute Software which will accomplish the same objective, or terminate the license and refund the Licensee's paid license fee. 6.3. Warranty claims are described in the Primary Agreement. 6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other warranties (express or implied, oral or written) with respect to the Software or Documentation, including, without limitation, any and all implied warranties of condition, title, non-infringement, merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola disclaims any warranty to any person other than Licensee with respect to the Software or Documentation. Section 7 TRANSFERS Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee paying all applicable license fees and agreeing to be bound by this Agreement. If the Designated Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products to a third party, Licensee may assign its right to use the Software (other than RSS and Motorola's FLASHport® software) which is embedded in or furnished for use with the radio products and the related Documentation; provided that Licensee transfers all copies of the Software and Documentation to the transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon request, obligating the transferee to be bound by this Agreement. Section 8 TERM AND TERMINATION 8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in which case this Agreement and licensee's right to use the Software and Documentation may be terminated immediately upon notice by Motorola. 8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer in use by Licensee. 8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Section 9 UNITED STATES GOVERNMENT LICENSING PROVISIONS This Section applies if Licensee is the United States Government or a United States Government agency. Licensee's use, duplication or disclosure of the Software and Documentation under Motorola's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless they are being provided to the Department of Defense. If the Software and Documentation are being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice, or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement transaction. Section 10 CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary Agreement concerning Confidential Information apply. Section 11 LIMITATION OF LIABILITY The Limitation of Liability provision is described in the Primary Agreement. Section 12 NOTICES Notices are described in the Primary Agreement. Section 13 GENERAL 13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software. 13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Motorola and the appropriate governmental authority of the United States, in any form export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval. Violation of this provision is a material breach of this Agreement. 13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or consent of Licensee. 13.4. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped. The terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the Unrform Computer Information Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA") becomes applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA. 13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and Licensee. No third party has the right to make any claim or assert any right under this Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing, any licensor or supplier of third party software included in the Software will be a direct and intended third party beneficiary of this Agreement. 13.6. SURVIVAL. Sections 4, 5, 6.3, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement. 13.7. ORDER OF PRECEDENCE. In the event of inconsistencies between this Software Licensing Agreement and the Primary Agreement, the parties agree that this Software Licensing Agreement prevails, only with respect to the specific subject matter of this Software Licensing Agreement, and not the Primary Agreement or any other exhibit as it applies to any other subject matter. 13.8 SECURITY. Motorola's Information Assurance Policy addresses the issue of security. Motorola uses reasonable means in the design and writing of its own Software and the acquisition of third party Software'to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, ff aSecurity Vulnerability is discovered, Motorola will take the steps set forth in Section 6 of this Agreement. 14. GENERAL PATENT AND COPYRIGHT INFRINGEMENT 1. CONTRACTOR will defend at its expense any suit brought against CITY to the extent it is based on an Infringement Claim, and CONTRACTOR will indemnify CITY for those costs and damages finally awarded against CITY for an Infringement Claim. CONTRACTOR'S duties to defend and indemnify are conditioned upon: CITY promptly notifying CONTRACTOR in writing of the Infringement Claim; CONTRACTOR having sole control of the defense of the suit and all negotiations for its settlement or compromise; and CITY providing to CONTRACTOR cooperation and, if requested by CONTRACTOR, reasonable assistance in the defense of the Infringement Claim. 2. If an Infringement Claim occurs, or in CONTRACTOR's opinion is likely to occur, CONTRACTOR may at its option and expense procure for CITY the right to continue using the Equipment or CONTRACTOR Software, replace or modify it so that it becomes non-infringing while providing functionally equivalent performance, or grant CITY a credit for the Equipment or CONTRACTOR Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and CONTRACTOR Software. 3. CONTRACTOR will have no duty to defend or indemnify for any Infringement Claim that is based upon the actions of a party other than CONTRACTOR who combines the Equipment or CONTRACTOR Software with any software, apparatus or device that is not CONTRACTOR's design or formula; a modification of the CONTRACTOR Software by a parry other than CONTRACTOR; or the failure by CITY to install an enhancement release to the CONTRACTOR Software that is intended to correct the claimed infringement. The foregoing states the entire liability of CONTRACTOR with respect to infringement of patents and copyrights by the Equipment, CONTRACTOR Software, or any of their parts. Contractor, Motorola, Inc. By: Name: ~ Title: 5 ~1 Date: Z - "© City of Riverside, MO Name: KhTH1.lEAJ L• e51: _ Title: ~ ~~~ - Date: ~~-zZ-,69