043-23 - Northwest Tree Service, Inc. - ContractDocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
and
CITY OF PORT ORCHARD SMALL WORKS UNDER 35K
CONSTRUCTION CONTRACT NO. 043-23
PUBLIC WORKS PROJECT NO. PW2023-009
THIS Agreement is made effective as of the 18th day of April, 2023, by and between
CITY OF PORT ORCHARD, WASHINGTON ("CITY")
216 Prospect Street
Port Orchard, Washington 98366
Contact: Mayor Robert Putaansuu Phone:360.876.4407 Fax: 360.895.9029
Northwest Tree Service, Inc. ("CONTRACTOR"), a Washington corporation located at:
6319 76t" Avenue Ct NW
Gig Harbor, WA 98335-6629
Contact: Troy Thompson Phone: 253-851-2195 Email: troy@nwtreeservice.com
for the following Project:
912 Cline Ave Stump and Tree Removal ("PROJECT")
In consideration of the mutual benefits to both parties, both Parties agree to the
following:
AGREEMENT:
1. Contract Documents. The Contractor shall complete the Work described in the Contract
Documents for the Project. The following documents are collectively referred to as the
"Contract Documents":
a) This Agreement signed by the City and the Contractor;
b) Division 1 of WSDOT Standard Specifications for Road, Bridge and Municipal Construction,
2022 edition, together with APWA Supplement (1-99), subject to specific provisions
contained within the Public Works Terms and Conditions;
c) The attached Special Provisions, Plans and Specifications;
d) 2018 International Building Code (IBC) and 2018 Energy Code Compliance.
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e) Written change orders or orders for minor changes in the Work issued after execution of
this Agreement;
f) Public Works Terms and Conditions;
g) Insurance and Bonding Requirements (unless bonding is waived);
h) The Invitation to Bid, and bid proposal submitted by the Contractor, except when
inconsistent with Contract Documents a-g;
i) 2019 Public Works Engineering Standards;
j) Appendix A: Non -Discrimination Statutes and Authorities; and
k) The bid proposal submitted by the Contractor, except when inconsistent with Contract
Documents a-j.
All of the above listed Contract Documents are each made exhibits to this Agreement and are
incorporated into the Agreement as if set forth in full. The intent of the Contract Documents is
to include all items necessary for the proper execution and completion of the Work by the
Contractor. These Contract Documents complement each other in describing a complete work.
Any requirement in one document binds as if stated in all. The Contractor shall provide any work
or materials clearly implied in the Contract even if the Contract does not mention it specifically.
2. Date of Commencement and Substantial Completion Date. The date of commencement
shall be May 8, 2023. The Contractor shall substantially complete the Work not later than
June 30, 2023, subject to adjustment by change order.
3. The Contractor shall do all work and furnish all tools, materials, and equipment in accordance
with the above described Construction Contract Documents. The Contractor shall provide and
bear the expense of all equipment, work, and labor of any sort whatsoever that may be
required for the transfer of materials and for constructing and completing of the work
provided for in these Construction Contract Documents, except those items mentioned
therein to be furnished by the City. Contractor represents that the services furnished under
this Agreement will be performed in accordance with generally accepted professional
practices in effect at the time such services are performed.
4. Subject to additions and deductions by change order, the construction maximum payment is
the base bid amount of $6,776.60 (applicable sales tax included) (hereinafter "Contract
Sum"). The construction Contract Sum shall include all items and services necessary for the
proper execution and completion of the work. The City hereby promises and agrees with the
Contractor to employ, and does employ the Contractor to provide the materials and to do
and cause to be done the work described in the Construction Contract Documents and to
complete and finish the same according to the plans and specifications and the terms and
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conditions herein contained; and hereby contracts to pay for the same at the time and in the
manner and upon the conditions provided for in this Contract.
5. The Contractor agrees to comply with all state and federal laws relating to the employment
of labor and wage rates to be paid, including prevailing wage if applicable. The Contractor
agrees to furnish insurance of the types and in the amounts set forth in the Construction
Contract Documents. The Contractor warrants that it is licensed and authorized to do
business under the laws of the State of Washington and has not been suspended or debarred
in the past three (3) years.
6. The Contractor agrees to repair and replace all property of the City and all property of others
damaged by himself, his employees, and sub -contractors.
7. The Contractor for himself and for his heirs, executors, administrators, successors, and
assigns, does hereby agree to the full performance of all the covenants herein upon the part
of the Contractor.
8. It is further provided that no liability shall attach to the City of Port Orchard by reason of
entering into this Construction Contract, except as expressly provided herein.
9. Title VI.
The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252,
42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation
subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the
Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts
comply with these regulations.
Also, in accordance with Title VI, the City is required to include the following clauses in every
contract subject to Title VI and its related regulations.
Therefore, during the performance of this Agreement, the Contractor, for itself, its assignees,
and successors in interest agrees as follows:
a) Compliance with Regulations. The Contractor will comply with the Acts and the
Regulations relative to Nondiscrimination in Federally -assisted programs of the U.S.
Department of Transportation, Federal Highway Administration (FHWA), as they may be
amended from time to time, which are herein incorporated by reference and made a part
of this Agreement.
b) Nondiscrimination. The Contractor, with regard to the work performed by it during this
Agreement, will not discriminate on the grounds of race, color, national origin, sex, age,
disability, income -level, or LEP in the selection and retention of subcontractors, including
procurements of materials and leases of equipment. The Contractor will not participate
directly or indirectly in the discrimination prohibited by the Acts and the Regulations as
set forth in Appendix A, attached hereto and incorporated herein by this reference,
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including employment practices when this Agreement covers any activity, project, or
program set forth in Appendix B of 49 C.F.R. part 21.
c) Solicitations for Subcontracts, Including Procurements of Materials and Equipment. In all
solicitations, either by competitive bidding, or negotiation made by the Contractor for
work to be performed under a subcontract, including procurements of materials, or leases
of equipment, each potential subcontractor or supplier will be notified by the Contractor
of the Contractor's obligations under this Agreement and the Acts and the Regulations
relative to Non-discrimination on the grounds of race, color, national origin, sex, age,
disability, income -level, or LEP.
d) Information and Reports. The Contractor will provide all information and reports required
by the Acts, the Regulations and directives issued pursuant thereto and will permit access
to its books, records, accounts, other sources of information, and its facilities as may be
determined by the City or the FHWA to be pertinent to ascertain compliance with such
Acts, Regulations, and instructions. Where any information required of the Contractor is
in the exclusive possession of another who fails or refuses to furnish the information, the
Contractor will so certify to the City or the FHWA, as appropriate, and will set forth what
efforts it has made to obtain the information.
e) Sanctions for Noncompliance. In the event of the Contractor's noncompliance with the
Non- discrimination provisions of this Agreement, the City will impose such contract
sanctions as it or the FHWA may determine to be appropriate, including, but not limited
to:
1. withholding payments to the Contractor under the Agreement until the contractor
complies; and/or
2. cancelling, terminating, or suspending the Agreement, in whole or in part.
f) Incorporation of Provisions. The Contractor will include the provisions of paragraphs one
through six in every subcontract, including procurements of materials and leases of
equipment, unless exempt by the Acts, the Regulations and directives issued pursuant
thereto. The Contractor will take action with respect to any subcontract or procurement
as the City or the FHWA may direct as a means of enforcing such provisions including
sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is
threatened with litigation by a subcontractor, or supplier because of such direction, the
Contractor may request the City to enter into any litigation to protect the interests of the
City. In addition, the Contractor may request the United States to enter into the litigation
to protect the interests of the United States.
10. Public Records Act Chapter 42.56 RCW. Contractor understands that her/his bid response
documents, and any contract documents may be subject to release under the Public Records
Act Chapter 42.56 RCW and the City may be required to disclose such documents upon a
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request. Contractor acknowledges that s/he has been advised to mark any records believed
to be trade secrets or confidential in nature as "confidential." If records marked as
"confidential" are found to be responsive to the request for records, the City as a courtesy to
the Contractor, may elect to give notice to Contractor of the request so as to allow Contractor
to seek a protective order from a Court. Contractor acknowledges and agrees that any
records deemed responsive to a public records request may be released at the sole discretion
of, and without notice by, the City.
11. Warranty. Upon acceptance of the contract work, Contractor must provide the City a two-
year warranty bond in the amount of twenty percent (20%) of the contract price a form and
amount acceptable to the City. The Contractor shall correct all defects in workmanship and
materials within two (2) years from the date of the City's acceptance of the Contract work,
including replacing vegetation that fails to thrive. In the event any parts are repaired or
replaced, only original replacement parts shall be used —rebuilt or used parts will not be
acceptable. When defects are corrected, the warranty for that portion of the work shall
extend for one (1) additional year from the date such correction is completed and accepted
by the City. The Contractor shall begin to correct any defects within seven (7) calendar days
of its receipt of notice from the City of the defect. If the Contractor does not accomplish the
corrections within a reasonable time as determined by the City, the City may complete the
corrections and the Contractor shall pay all costs incurred by the City in order to accomplish
the correction.
12. Indemnification. Contractor shall defend, indemnify, and hold the City, its officers, officials,
employees, agents, and volunteers harmless from any and all claims, injuries, damages, losses
or suits, including all legal costs and attorney fees, arising out of or in connection with the
Contractor's performance of this Agreement, except for that portion of the injuries and
damages caused by the sole negligence of the City.
The City's inspection or acceptance of any of Contractor's work when completed shall not be
grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Contractor
and the City, its officers, officials, employees, agents and volunteers, the Contractor's liability
hereunder shall be only to the extent of the Contractor's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION
PROVIDED HEREIN CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER
INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS
INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY
NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this agreement.
13. Miscellaneous Provisions.
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a) Non -Waiver of Breach. The failure of the City to insist upon strict performance of any
of the covenants and agreements contained in this Agreement, or to exercise any
option conferred by this Agreement in one or more instances shall not be construed
to be a waiver or relinquishment of those covenants, agreements or options, and the
same shall be and remain in full force and effect.
b) Resolution of Disputes and Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington. If the parties are
unable to settle any dispute, difference or claim arising from the parties' performance
of this Agreement, the exclusive means of resolving that dispute, difference or claim,
shall only be by filing suit exclusively under the venue, rules and jurisdiction of the
Kitsap County Superior Court, Kitsap County, Washington, unless the parties agree in
writing to an alternative dispute resolution process. In any claim or lawsuit for
damages arising from the parties' performance of this Agreement, each party shall
pay all its legal costs and attorney's fees incurred in defending or bringing such claim
or lawsuit, including all appeals, in addition to any other recovery or award provided
by law; provided, however, nothing in this paragraph shall be construed to limit the
City's right to indemnification under Section XII of this Agreement.
c) Written Notice. All communications regarding this Agreement shall be sent to the
parties at the addresses listed on the signature page of the Agreement, unless notified
to the contrary. Any written notice hereunder shall become effective three (3)
business days after the date of mailing by registered or certified mail, and shall be
deemed sufficiently given if sent to the addressee at the address stated in this
Agreement or such other address as may be hereafter specified in writing.
d) Assignment. Any assignment of this Agreement by either party without the written
consent of the non -assigning party shall be void. If the non -assigning party gives its
consent to any assignment, the terms of this Agreement shall continue in full force
and effect and no further assignment shall be made without additional written
consent.
e) Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized
representative of the City and Contractor.
f) Entire Agreement. The written provisions and terms of this Agreement, together with
any Exhibits attached hereto, shall supersede all prior verbal statements of any officer
or other representative of the City, and such statements shall not be effective or be
construed as entering into or forming a part of or altering in any manner this
Agreement. All of the above documents are hereby made a part of this Agreement.
However, should any language in any of the Exhibits to this Agreement conflict with
any language contained in this Agreement, the terms of this Agreement shall prevail.
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g) Compliance with Laws. The Contractor agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become
applicable to Contractor's business, equipment, and personnel engaged in operations
covered by this Agreement or accruing out of the performance of those operations.
h) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall constitute an original, and all of which will together constitute this one
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this contract to be duly executed
on the date first written above.
CITY OF PORT ORCHARD
DocuSigned by:
SWA,
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Robert Putannsuu, Mayor
ATTEST/AUTHENTICATE:
Brandy Wallace, MMC, City Clerk
APPROVED AS TO FORM:
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Charlotte A. Archer, City Attorney
CONTRACTOR
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DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
CERTIFICATE AS TO CORPORATE PRINCIPAL
certify that I am the ()wnPr
(Corporate Officer (Not Contract Signer))
(Corporate Title) of the
corporatio d the Contractor in the Agreement attached hereto; that
(Contract Signer) who signed said Agreement on behalf
of the Contractor, was then nwnPr (Corporate Title) of said corporation;
that said Agreement was duly signed for and in behalf of said corporation by authority of its
governing body, and is within the scope of its corporate powers.
Corporate Seal
Corp. officer signature (not contract signer)
TrnV Thmmpsnn
Printed
Owner
Title
State of _WA )
County of I sap )
4--�/ , (corporate officer (not contract signer)) being duly
sworn, deposes and says that he/she is Owner (Corporate Title) of
NnrthwPGt TrPP SPrvir.P (Name of Corporation)
Subscribed and sworn to before me this 14 day of May 20 23
Notary Public (Signature)
Notary Public (Print)
My commission expires
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CITY OF PORT ORCHARD
PUBLIC WORK PROJECT TERMS AND CONDITIONS
The following terms and conditions shall be used in conjunction with the Standard Specifications
for Road, Bridge and Municipal Construction, 2022 edition, together with the APWA Supplement
(Section 1-99), as issued by the Washington State Department of Transportation and American
Public Works Association, Washington State Chapter, hereinafter referred to as the "standard
specifications". The standard specifications, except as they may be modified or superseded by
these provisions, shall govern all phases of work under this Contract, and they are by reference
made an integral part of these specifications and Contract as if herein fully set forth.
When the provisions of the standard specification conflict with the terms and conditions as
contained herein, the terms and conditions shall prevail.
1. BID PRICE: The bid price(s) shall include all necessary permits, fees and items of labor,
material, equipment, tools, overhead and compensation, supplies, taxes, utilities and
other incidentals necessary to complete the work in a fully functional and operational
state. All prices including bid prices are in US funds.
2. DEFINITIONS: The term "City" means Port Orchard, Washington, "successful bidder"
means the apparent lowest and best responsible bidder to whom an award is made, and
"Contractor" means the successful bidder who has satisfied the requirements for the
award and who receives a contract executed by the City. "Bidder" means the person, firm
or corporation that has made an offer in response to the invitation to bid. "Work" means
the construction and services required by the Contract Documents, whether completed
or partially completed, and includes all other labor, materials, equipment and services
provided or to be provided by the Contractor to fulfill the Contractor's obligations.
3. LICENSING AND REGISTRATION: The Contractor must have a Washington State certificate
of registration per chapter 18.27 RCW; a current state unified business identifier number;
and if applicable, industrial insurance coverage for the bidder's employees working in
Washington, an Employment Security Department number, and a state excise tax
registration number. In addition, the bidder must not be disqualified from bidding on any
public works contracts under RCW 39.06.010 or 39.12.065(3).
4. PUBLIC WORK REQUIREMENTS: This project constitutes a public work under state law.
Bidders are warned to take into consideration statutory legal requirements, particularly,
the payment of prevailing wages and fringe benefits, payment and performance bonds
(unless waived) and sales tax implications in making their bids. It is the sole responsibility
of the bidder to insure that the appropriate labor classification(s) are identified and that
the applicable wage and benefit rates are taken into consideration when preparing their
bid according to these specifications. The Contractor shall complete and file State of
Washington, Department of Labor & Industries, Statement of Intent to Pay Prevailing
Wages and Affidavit of Wages Paid forms and shall familiarize itself with their
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requirements. The Contractor shall also be responsible for and pay all costs pertaining to
the processing of these forms.
5. PREVAILING WAGES: The Contractor shall pay prevailing wages as required and shall comply
with Chapters 39.12 and 49.28 RCW. Prior to beginning work under this Contract, the
Contractor shall submit -- on behalf of itself and each and every Sub -Contractor — a
"Statement of Intent to Pay Prevailing Wages," which must be approved by the Department
of Labor and Industries (See link below.) Following the final acceptance of the project, the
Contractor must submit -- on behalf of itself and every Sub -Contractor -- an "Affidavit of
Wages Paid" for final payment. Final payments shall be made in accordance with the
requirements of Chapter 39.12 RCW.
Refer to http://www.Ini.wa.gov/TradesLicensing/PrevWage/WageRates/default.asp for
Washington State Prevailing Wage rates.
6. INSURANCE REQUIREMENT: The successful bidder will furnish insurance as stipulated in
the Attachment entitled "Insurance Requirements."
7. RECEIPT OF ADDENDA: All official clarifications or interpretations of the bid documents
will be by written addenda only.
8. PROJECT COMPLIANCE: In compliance with the request for quotation, Bidder hereby
proposes to perform all work for this project in strict accordance with the Contract
Documents, at the Contract Sum, and within the time set forth herein with the
understanding that time is of the essence in the performance of this Contract.
9. TAXES: Proposals shall include all applicable taxes except sales tax which is a separate bid
item. It shall be the Bidder's responsibility to furnish Federal Excise Tax Exemption
Certificate, when applicable.
10. ERROR IN EXTENSION: Unit price, when used, shall govern in case of extension error.
11. PERMITS AND FEES: The Contractor shall furnish all permits, inspection fees, and fees
required in the performance of this Contract, including those charged under RCW
39.12.070 by the Department of Labor and Industries for the approval of statements of
intent to pay prevailing wages and the certification of affidavits of wages paid, etc. The
Department may also charge fees to persons or organizations requesting the arbitration
of disputes under RCW 39.12.060. The Contractor is responsible for all fees resulting from
these statutes.
12. CONTRACT: The Contract, when properly signed, will be the only form that will be
recognized by the City as an award. The executed Contract supersedes all previous
communications and negotiations, except as referenced herein, and constitutes the
entire agreement between the City and Contractor (parties), except as provided herein.
The Contractor shall not make any changes, alterations, or variations in the terms of the
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Contract without the written consent of the City. No terms stated by the Bidder in its
proposal shall be binding on the City unless accepted in writing by the City. The successful
bidder may not assign the Contract resulting from this invitation to bid without the City's
prior written consent. No waiver by the City of a breach of any provision of the terms and
conditions outlined in the invitation to bid shall constitute a waiver of any other breach
of such provision or of any other provisions.
13. CHANGES: The City may issue a written change order for any change in the Contract work
during the performance of this Agreement. If the Contractor determines, for any reason,
that a change order is necessary, Contractor must submit a written change order request
to the person listed in the Notice provision section of this Agreement, within fourteen
(14) calendar days of the date Contractor knew or should have known of the facts and
events giving rise to the requested change. If the City determines that the change
increases or decreases the Contractor's costs or time for performance, the City will make
an equitable adjustment. The City will attempt, in good faith, to reach agreement with
the Contractor on all equitable adjustments. However, if the parties are unable to agree,
the City will determine the equitable adjustment as it deems appropriate. The Contractor
shall proceed with the change order work upon receiving either a written change order
from the City or an oral order from the City before actually receiving the written change
order. If the Contractor fails to require a change order within the time specified in this
paragraph, the Contractor waives its right to make any claim or submit subsequent
change order requests for that portion of the contract work. If the Contractor disagrees
with the equitable adjustment, the Contractor must complete the change order work;
however, the Contractor may elect to protest the adjustment as provided in subsections
A through E of Section 13 entitled, "Claims," below.
The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) writing
a separate acceptance, or (3) not protesting in the way this section provides. A change
order that is accepted by Contractor as provided in this section shall constitute full
payment and final settlement of all claims for contract time and for direct, indirect, and
consequential costs, including costs of delays related to any work, either covered or
affected by the change.
14. CLAIMS: If the Contractor disagrees with anything required by a change order, another
written order, or an oral order from the City, including any direction, instruction,
interpretation, or determination by the City, the Contractor may file a claim as provided
in this section. The Contractor shall give written notice to the City of all claims within
fourteen (14) calendar days of the occurrence of the events giving rise to the claims, or
within fourteen (14) calendar days of the date the Contractor knew or should have known
of the facts or events giving rise to the claim, whichever occurs first. Any claim for
damages, additional payment for any reason, or extension of time, whether under this
Agreement or otherwise, shall be conclusively deemed to have been waived by the
Contractor unless a timely written claim is made in strict accordance with the applicable
provisions of this Agreement.
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At a minimum, a Contractor's written claim shall include the information set forth in
subsections A, items 1 through 5 below.
FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME
ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM
THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY.
A. Notice of Claim. Provide a signed written notice of claim that provides the
following information:
1. The date of the Contractor's claim;
2. The nature and circumstances that caused the claim;
3. The provisions in this Agreement that support the claim;
4. The estimated dollar cost, if any, of the claimed work and how that
estimate was determined; and
5. An analysis of the progress schedule showing the schedule change
or disruption if the Contractor is asserting a schedule change or disruption.
B. Records. The Contractor shall keep complete records of extra costs and
time incurred as a result of the asserted events giving rise to the claim. The City shall have
access to any of the Contractor's records needed for evaluating the protest.
The City will evaluate all claims, provided the procedures in this section are followed. If
the City determines that a claim is valid, the City will adjust payment for work or time by
an equitable adjustment. No adjustment will be made for an invalid protest.
C. Contractor's Duty to Complete Protested Work. In spite of any claim, the
Contractor shall proceed promptly to provide the goods, materials and services required
by the City under this Agreement.
D. Failure to Protest Constitutes Waiver. By not protesting as this section
provides, the Contractor also waives any additional entitlement and accepts from the City
any written or oral order (including directions, instructions, interpretations, and
determination).
E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the
procedures of this section, the Contractor completely waives any claims for protested
work and accepts from the City any written or oral order (including directions,
instructions, interpretations, and determination).
15. LIMITATION OF ACTIONS: CONTRACTOR MUST, IN ANY EVENT, FILE ANY LAWSUIT
ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS
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FROM THE DATE THE CONTRACT WORK IS COMPLETE OR CONTRACTOR'S ABILITY TO FILE
THAT CLAIM OR SUIT SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY
APPLICABLE STATUTORY LIMITATIONS PERIOD.
16. WORK PERFORMED AT CONTRACTOR'S RISK: Contractor shall take all necessary
precautions and shall be responsible for the safety of its employees, agents, and
subcontractors in the performance of the contract work and shall utilize all protection
necessary for that purpose. All work shall be done at Contractor's own risk, and
Contractor shall be responsible for any loss of or damage to materials, tools, or other
articles used or held for use in connection with the work.
17. COMPLIANCE WITH LAWS AND REGULATIONS: The Contractor warrants full compliance
with all applicable local, state or federal laws and regulations and agrees to indemnify and
defend the City against any loss, cost, liability or damage, including reasonable attorney's
fees, by reason of successful bidder's violation of this paragraph.
18. EMPLOYMENT OF STATE RETIREES: The City is a "DRS-covered employer" which is an
organization that employs one or more members of any retirement system administered
by the Washington State Department of Retirement Systems (DRS). Pursuant to RCW
41.50.139(1) and WAC 415-02-325(1), the City is required to elicit on a written form if any
of the Contractor's employees providing services to the City retired using the 2008 Early
Retirement Factors (ERFs), or if the Contractor is owned by an individual who retired using
the 2008 ERFs, and whether the nature of the service and compensation would result in
a retirement benefit being suspended. Failure to make this determination exposes the
City to significant liability for pension overpayments. As a result, before commencing
work under this Agreement, Contractor shall determine whether any of its employees
providing services to the City or any of the Contractor's owners retired using the 2008
ERFs, and shall immediately notify the City and shall promptly complete the form
provided by the City after this notification is made. This notification to DRS could impact
the payment of retirement benefits to employees and owners of Contractor. Contractor
shall indemnify, defend, and hold harmless the City from any and all claims, damages, or
other liability, including attorneys' fees and costs, relating to a claim by DRS of a pension
overpayment caused by or resulting from Contractor's failure to comply with the terms
of this provision. This provision shall survive termination of this Agreement.
19. TERMINATION: This Contract may be terminated in whole or in part, without penalty,
under the following conditions: 1) by mutual written agreement; 2) by the City for breach
by the Contractor of any of the obligations or requirements set forth in the Contract
Documents which would, at the option of the City, require the Contractor to assume
liability for any and all damages, including the excess of re -procuring similar products or
services; 3) for convenience of the City; or 4) by the City for non -appropriation of funds.
a) Termination for Cause. The City may, upon 7 days written notice to Contractor and
to its surety, terminate (without prejudice to any right or remedy of the City) the
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DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
contract, or any part of it, for cause upon the occurrence of any one or more of the
following events: Contractor fails to complete the work or any portion thereof with
sufficient diligence to ensure substantial completion of the work within the
contract time; Contractor is adjudged bankrupt, makes a general assignment for
the benefit of its creditors, or a receiver is appointed on account of its insolvency;
Contractor fails in a material way to replace or correct work not in conformance
with the Contract Documents, Contractor repeatedly fails to supply skilled workers
or proper materials or equipment; Contractor materially disregards or fails to
comply with laws, ordinances, rules, regulations, or orders of any public authority
having jurisdiction; or Contractor is otherwise in material breach of any provision
of the contract. Upon termination, the City may, at its option, take possession of
or use all documents, materials, equipment, tools, and construction equipment
and machinery thereon owned by Contractor to maintain the orderly progress of,
and to finish, the work, and finish the work by whatever other reasonable method
it deems expedient.
b) Termination for Convenience. The City may, upon written notice, terminate
(without prejudice to any right or remedy of the City) the contract, or any part of
it, for the convenience of the City.
c) Settlement of Costs. If the City terminates for convenience, Contractor shall be
entitled to make a request for an equitable adjustment for its reasonable direct
costs incurred prior to the effective date of the termination, plus a reasonable
allowance for overhead and profit on work performed prior to termination, plus
the reasonable administrative costs of the termination, but shall not be entitled to
any other costs or damages, whatsoever, provided however, the total sum payable
upon termination shall not exceed the Contract Sum reduced by prior payments.
20. COMPLIANCE WITH TERMS: The City may at any time insist upon strict compliance with
these terms and conditions, notwithstanding any previous custom, practice, or course of
dealing to the contrary.
21. PAYMENT: Contractor shall maintain time and expense records and provide them to the
City along with monthly invoices in a format acceptable to the City for work performed to
the date of the invoice. All invoices shall be paid by the City within 45 days of receipt of a
proper invoice. If the services rendered to not meet the requirements of the Contract,
Contractor will correct or modify the work to comply with the Contract. City may withhold
payment for such work until the work meets the requirements of the Contract.
22. RETAINAGE: Unless the City waives the retainage requirement in accordance with RCW
39.04.155(2)(f), the City shall, pursuant to the requirements of RCW 60.28.011, retain five
percent (5%) of the monies earned under this Contract, which shall be maintained by the
City according to the Contractor's requested method.
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DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
23. BONDING: The City may waive the requirement of a performance bond in accordance
with RCW 39.08.100 upon request of the Contractor. If the City agrees to waive the
performance bond, then in such case, the Retainage shall be increased to ten (10)
percent.
24. DISPUTE RESOLUTION: In the event there is a dispute between the parties, the parties
agree to resolve that dispute in the following manner: (a) The parties shall attempt in
good faith to resolve any dispute promptly through negotiation. Either party may give the
other party written notice that a dispute exists (a "Notice of Dispute"). The Notice of
Dispute shall include a statement of such party's position. Within ten (10) days of the
delivery of the Notice of Dispute, the parties shall meet at a mutually acceptable time and
place and attempt to resolve the dispute; (b) If the parties are unable to resolve the
dispute, they may elect to submit the dispute to mediation. The cost of the mediation
shall be borne equally by the parties. The mediator shall be selected by the mutual
agreement of the parties; (c) If the mediation does not result in a settlement of the
dispute, the dispute shall be settled by binding arbitration by the Judicial Arbitration and
Mediation Services ("JAMS") in accordance with the then operative construction rules of
JAMS. The parties may select an arbitrator by mutual agreement, or if unable to agree,
the arbitrator will be selected pursuant to the rules of JAMS. The parties shall be bound
by the decision of such arbitrator. The arbitration shall be conducted in Kitsap County,
Washington; provided, if JAMS is unable to conduct the arbitration in Kitsap County, then
the arbitration shall be held in such location as the parties may agree after consulting with
JAMS.
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DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
CITY OF PORT ORCHARD
INSURANCE REQUIREMENTS
The Contractor shall procure and maintain for the duration of the Contract with the City,
insurance against claims for injuries to persons or damage to property which may arise from or
in connection with the performance of the work hereunder by the Contractor, their agents,
representatives, employees and subcontractors.
No Limitation. The Contractor's maintenance of insurance, its scope of coverage and limits as
required herein shall not be construed to limit the liability of the Contractor to the coverage
provided by such insurance, or otherwise limit the City's recourse to any remedy available at law
or in equity.
Minimum Scope of Insurance. The Contractor shall obtain insurance of the types described
below:
• Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles.
Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute
form providing equivalent liability coverage. If necessary, the policy shall be endorsed to
provide contractual liability coverage.
• Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01
and shall cover liability arising from premises, operations, stop gap liability, independent
contractors, products -completed operations, personal injury and advertising injury and
liability assumed under an insured contract. The Commercial General Liability insurance
shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03
1185 or an equivalent endorsement. There shall be no endorsement or modification of
the Commercial General Liability Insurance for liability arising from explosion, collapse or
underground property damage. The City shall be named by endorsement as an additional
insured under the Contractor's Commercial General Liability insurance policy with respect
to the work performed for the City using ISO Additional Insured endorsement CG or
substitute endorsements providing equivalent coverage.
• Workers' Compensation coverage as required by the Industrial Insurance laws of the State
of Washington.
• Builders Risk insurance covering interests of the City, the Contractor, Subcontractors, and
Sub -subcontractors in the work. Builders Risk insurance shall be on an all-risk policy form
and shall insure against the perils of fire and extended coverage and physical loss or
damage including flood, earthquake, theft, vandalism, malicious mischief, collapse,
temporary buildings and debris removal. The Builders Risk insurance covering the work
will have a deductible of $5,000 for each occurrence, which will be the responsibility of
the Contractor. Higher deductibles for flood and earthquake perils may be accepted by
the City upon written request by the Contractor and written acceptance by the City. Any
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DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
increased deductibles accepted by the City will remain the responsibility of the
Contractor. The Builders Risk insurance shall be maintained until final acceptance of the
work by the City.
• Employer's Liability insurance limit of $1,000,000 each accident, Employer's Liability
Disease each employee $1,000,000 and Employer's Liability Disease — Policy limit
$1,000.000.
Minimum Amounts of Insurance. The Contractor shall maintain the following insurance limits:
• Automobile Liability insurance with a minimum combined single limit for bodily injury and
property damage of $1,000.000 per accident.
• Commercial General Liability insurance shall be written with limits no less than
$1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products -
completed operations aggregate limit.
• Builders Risk insurance shall be written in the amount of the completed value of the
project with no coinsurance provisions.
• Workers' Compensation insurance as required by the State of Washington.
• Employer's Liability insurance with Washington Stop Gap Employers' Liability minimum
limits of $1,000,000 each accident, $1,000,000 disease - each employee, $1,000,000
disease - policy limit.
The City will not be responsible for payment of industrial insurance premiums or for any other
claim or benefit for this Contractor or any sub -Contractor or employee of the Contractor which
might arise under the industrial insurance laws during the performance of duties and services
under this contract. If the Department of Labor and Industries, upon audit, determines that
industrial insurance payments are due and owing as a result of work performed under this
contract, those payments shall be made by the Contractor; the Contractor shall indemnify the
City and guarantee payment of such amounts.
Public Entity Full Availability of Contractor Limits. If the Contractor maintains higher insurance
limits than the minimums shown above, the Public Entity shall be insured for the full available
limits of Commercial General and Excess or Umbrella liability maintained by the Contractor,
irrespective of whether such limits maintained by the Contractor are greater than those
required by this contract or whether any certificate of insurance furnished to the Public Entity
evidences limits of liability lower than those maintained by the Contractor.
Other Insurance Provisions. The Contractor's Automobile Liability, Commercial General Liability
and Builders Risk insurance policies are to contain or be endorsed to contain that they shall be
primary insurance as respects the City. Any insurance, self-insurance or insurance pool coverage
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DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
maintained by the City shall be excess of the Contractor's insurance and shall not contribute with
it. If any coverage is written on a "claims made" basis, then a minimum of three (3) year extended
reporting period shall be included with the claims made policy, and proof of this extended
reporting period provided by the City.
Contractor's Insurance for Other Losses. The Contractor shall assume full responsibility for all
loss or damage from any cause whatsoever to any tools, including but not limited to the
Contractor's employee -owned tools, machinery, equipment or motor vehicles owned or rented
by the Contractor, or the Contractor's agents, suppliers or contractors as well as any temporary
structures, scaffolding and protective fences.
Waiver of Subrogation. The Contractor waives all rights against the City, any of its Subcontractors,
Sub -subcontractors, agents and employees, for damages caused by fire or other perils to the
extent covered by Builders Risk insurance or other property insurance obtained pursuant to this
Insurance Requirements Section of the Contract or other property insurance applicable to the
work. The Contractor's insurance shall be endorsed to waive the right of subrogation against the
City, or any self-insurance, or insurance pool coverage maintained by the City. The City will not
waive its right to subrogation against the Contractor. The Contractor's insurance shall be
endorsed acknowledging that the City will not waive its right to subrogation.
Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating
of not less than ANIL
Verification of Coverage. The Contractor shall furnish the City with original certificates and a copy
of the amendatory endorsements, including but not necessarily limited to the additional insured
endorsement, evidencing the Automobile Liability and Commercial General Liability insurance of
the Contractor before commencement of the work. Before any exposure to loss may occur, the
Contractor shall file with the City a copy of the Builders Risk insurance policy that includes all
applicable conditions, exclusions, definitions, terms and endorsements related to this project.
Subcontractors. The Contractor shall have sole responsibility for determining the insurance
coverage and limits required, if any, to be obtained by subcontractors, which determination shall
be made in accordance with reasonable and prudent business practices.
Notice of Cancellation. The Contractor's insurance shall be endorsed to state that coverage shall
not be cancelled by either party, except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to the City. The Contractor shall provide the City
and all Additional Insureds for this work with written notice of any policy cancellation, within two
business days of their receipt of such notice.
Failure to Maintain Insurance. The insurance required by this Section will not be canceled,
materially changed or altered without forty-five (45) days prior written notice submitted to the
City. Failure on the part of the Contractor to maintain insurance as required shall constitute a
material breach of contract, upon which the City may, after giving five business days' notice to
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DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
the Contractor to correct the breach, immediately terminate the Contract, or, at its discretion,
procure or renew such insurance and pay any and all premiums in connection therewith, with
any sums so expended to be repaid to the City on demand, or at the sole discretion of the City,
offset against funds due the Contractor from the City.
Page -19-
DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
CITY OF PORT ORCHARD
DECLARATION OF OPTION FOR PERFORMANCE AND PAYMENT
BOND OR ADDITIONAL RETAINAGE
(APPLICABLE TO CONTRACTS OF $150,000 OR LESS — RCW 39.08.010)
Note 1: This form must be submitted at the time the Contractor executes the Contract. The
Contractor shall designate the option, where applicable, desired by checking the appropriate
space.
Note 2: Regardless of choice under Section 2 of this form, the Contractor will be required to
provide a warranty/maintenance bond effective at project close out prior to either release of the
performance bond or release of the 10% retainage. Note: Maintenance Bond Waived
1. The Contractor shall provide 5% retainage, pursuant to RCW 60.28.011(1)(a).
2. The Contractor elects to (select one):
(1) Furnish a performance and payment bond in the amount of the total
contract sum. An executed performance and payment bond on the required form
is included with the executed contract documents.
TT (2) Have the City retain, in lieu of the performance and payment bonds,
an additional 5% for a total of ten percent (10%) of the total contract amount for
a period of thirty days after date of final acceptance, or until receipt of all
necessary releases from the department of revenue, employment security
department and the department of labor and industries and settlement of any
liens filed under chapter 60.28 RCW, whichever is later. RCW 39.08.010
In choosing option 2, the Contractor agrees that if the Contractor, its heirs,
executors, administrators, successors, or assigns, shall in all things stand to and
abide by, and well and truly keep and perform the covenants, conditions and
agreements in the Contract, and shall faithfully perform all the provisions of such
Contract and shall also well and truly perform and fulfill all the undertakings,
covenants, terms, conditions and agreements of any and all duly authorized
modifications of the Contract that may hereafter be made, at the time and in the
manner therein specified, and shall pay all laborers, mechanics, subcontractors,
and materialmen, and all persons who shall supply such person or persons, or
subcontractors, with provisions and supplies for the carrying on of such work, on
his or her part, and shall defend, indemnify, and save harmless the City of Port
Orchard, Washington, its officers and agents from any claim for such payment,
then the funds retained in lieu of a performance bond shall be released at the time
provided in said option 2; otherwise, the funds shall be retained until the
Contractor fulfills the said obligations.
Contractor Signature, Date 9'l
Bond No. s9grin$7
Page - 20 -
DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
APPENDIX A
During the performance of this Agreement, the Contractor, for itself, its assignees, and successors
in interest agrees to comply with the following non-discrimination statutes and authorities;
including but not limited to:
Pertinent Non -Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U S.C. § 2000d et seq., 78 stat. 252), (prohibits
discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,
(42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property
has been acquired because of Federal or Federal -aid programs and projects);
• Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on
the basis of sex);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended,
(prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U S.C. § 6101 et seq.), (prohibits
discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 USC§ 471, Section 4 7123), as
amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage
and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of
1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of
the terms "programs or activities" to include all of the programs or activities of the
Federal -aid recipients, sub- recipients and contractors, whether such programs or
activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on
the basis of disability in the operation of public entities, public and private
transportation systems, places of public accommodation, and certain testing entities (42
U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at
49 C.P.R. parts 37 and 38;
• The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123)
(prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low -Income Populations, which ensures discrimination against minority
populations by discouraging programs, policies, and activities with disproportionately
high and adverse human health or environmental effects on minority and low-income
populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English
Proficiency, and resulting agency guidance, national origin discrimination includes
discrimination because of limited English proficiency (LEP). To ensure compliance with
Title VI, you must take reasonable steps to -ensure that LEP persons have meaningful
access to your programs (70 Fed. Reg. at 74087 to 74100);
Page - 32 -
DocuSign Envelope ID: 92144FD5-BAB1 -4D73-81 DB-DFACAE95398E
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).
Page - 33 -
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