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Subject
Department
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Amount
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End Date
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Contract Number 4368
FISCHER GENERAL CONTRACTING INC
Operations Facility - Renovation of
Econ Devel
CON File Class LEG 12-1
$133247.49
06/10/2003
09/30/2003
02/15/2006
GL
AL
E&O
$2000000.00
$1000000.00
$
Insurance Total
Insurance Review Date
$3000000.00
01/01/2004
VAULT 01/01/2006
CITY OF BREMERTON
FISCHER GENERAL CONTRACTING, INC.
RENOVATION OF OPERATIONS FACILITY
CHANGE ORDER 1
Description of Change - Following opening of bids, the only bidder was asked to
evaluate several items to negotiate a reduction in the bid price. After evaluation and
discussion with subcontractors, it was determined that the original bid price could not be
reduced. This change order raises the contract amount back to the original bid amount of
$133,247.49 and provides clarification for the following items:
(A) The hardware and doors intended for use on the project are to be standard
"commercial" grade.
(B) The carpet intended for installation is to be "commercial" grade.
(C) As an alternative to the 3-zone HVAC control system, the contractor can provide
a single zone system with supplemental baseboard heat at Room 1 (Secretary).
Accepted: Accepted:
City of Bremerton Fischer General Contracting Inc.
Kathleen L. McCluskey Dan Fischer
Administrative Services Director President ~ ~ 0 3
Date: ~, '- Lo ~ ? :~ Dated: / P -
PUBLIC WORKS AGREEMENT
THIS AGRHI~MENT, is entered into between the City of Bremerton, a Washington
Municipal CorporationCCity'), and Fischer General C0mracfin~_ Inc. CCoats-~ctor') whose
mailing address is P.O. Box 661, Poulsbo, WA. 98370.
The parties agree as follows:
1. CONTRACTOR SERVICES. The Contractor shall perform the following
seveices for the City: Renovate a pre-engineered metal building for use as office space and
vehicle storage in accordance with the contract drawings (Attached as Exhibit "A").
2. TIME OF COMPLETION. Contractor shall complete the work within 120 (one
hundred twenty) calendar days fi.om the date of issuance of the City's Notice to Proceed.
;~. COMPENSATION. The City shall pay the Contractor the total amount of
$120,000.00 (One Hundred Twenty Thousand Dollars), plus any applicable Washington State
Sales Tax, for the work and services contemplated in this agreement. The Contractor shall
invoice the City monthly. The City will pay for the portion oftbe work described in the invoice
that has been completed by the Contractor and approved by the City. The City payment shall not
cor~tihite a waiver of the City's right to final inspection and acceptance of the project.
A. P~. Pursuant to Chapter 39.08 RCW, the Coui~,~tor, shall
provide the City a performance bond for the full contract amonm to be in
effect until sixty (60) days after the date of final acceptance, or until
receipt of all necessary releases fi.om the State Deparunent of Revenue
and the State Department of Labor and Industries and until settlement of '
any liens filed under Chapter 60.28 RCW, whichever is later.
B. Retainag¢. The City shall hold ba~k a retainage in the amount of five
percent (5%) of any and all payments made to contractor for a period of
sixty (60) days after the date of final acceptance, or until receipt of all
necessary releases fi'om the State Department of Revenue and the State
Department of Labor & Industries and until settlement of any liens filed
under Chapter 60.28 RCW, whichever is later.
C. Defective or Unauthorized WO~ The City reserves its right to withhold
payment from Contractor for any defective or unauthorized work.
Defective or unauthorized work includes, without limitation: work and
materials that do not conform to the requirements of this agreement; and
extra work and materials furnished without the City's written approval. If
Contractor is unable, for any reason, to satisfactorily complete any portion
of the work, the City may complete the work by contract or otherwise, and
Co,~hactor shall be liable to the City for any addilional costs incurred by
the City. "Additional costs" shall mean all reasonable costs, including
legal costs and attorney fees, incurred by the City beyond the maximum
Fischer G-e~ral
Contract price specified above. The City further reserves its right to
deduct the cost to complete the Contract work, including any Additional
Costs, fi.om any and all amounts due or to become due the Corcuactor.
D. Final Payment: Waiver of Claims. THE MAKING OF FINAL
PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL
CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE
PREVIOUSLY AND PROPERLY MADE AND IDENTIFi~.D BY
CONTRACTOR AS UNSETTLED AT THE TIME REQUEST FOR
FINAL PAYMENT IS MADE.
4. INI)EPENI~ENT CONTRACTOR. Conlractor is and shall be at ail times
acting as an independent conuactor and not as an employee of the City. The Contractor shall
secure at its expense, and shall be responsible for ali payments of income tax, social security,
state disability insurance compensation, unemployment compensation, and all other payroll
deducfons for the Contractor, officer, agents, employees and sub-contractors. The Couh-actor
shall also secure all applicable business licenses, if required, in connection with the. contract
services, including all required licenses for Contractor's officers, agents, employees and sub-
con--rs.
5. TERMINATION. The City may terminate this agreement for good cm~se.
"Good cause" shall include, without limitation, any one or more of the following events:
A_ The Contractor's refusal or failure to supply a sufficient number of
properly skilled workers or proper materials for completion of the
Contract work.
B. The Contractor's failure to complete the work within the time specified in
this agreement.
C. The Contractor's failure to make full and prompt payment to
subcontractors or for material or labor.
D. The Contractor's persistent disregard of federal, state or local laws, rules
or regulations.
E. The CouUactor's filing for bankruptcy or becoming adjudged bankrupt.
If the City terminates this agreement for good cause, the Contractor shall not receive any
further monies due under this agreement until the Contract work is completed.
6. PREVP, nJNG WAGES. Coui~sctor shall file a "Statement of Intent to Pay
Prevailing Wages," with the State of Washington Department of Labor & Industries prior to
commencing the Contract work. Contractor shall pay prevailing wages and comply with Chapter
39.12 of the Revised Code of Washington, as well as any other applicable prevailing wage rate
Ftsr_.h#r Getwrai Con~ Inc.
provisions. The lutest prevailing wage rate revision issued by the Dep~uhnent of Labor and
Industries is attached.
7. CItANGIgS. The City may issue a written change order for any change in the
Contract work during the performance of this agreement. If the Contractor detenuines, for any
reason, that a change order is necessary, Contractor must submit a wsimm change order request
to an authorized agent of the City within fourteen (14) calendar days of the date Conhactor 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 Couh-~otor's costs or time for performance,
the City will r~slre an equitable adjustment. The City will attempt, in good faith, to reach
agreement with the Contractor on all equitable adjustments. However, tithe parties are unable to
agra, the City will determine the equitable adjustment as it deems appropriate. The Couh~gtor
shall proceed with the change ordcr work upon receiving either a written change order fi.om the
City or an oral order fi.om the City before aotually receiving the written change order, ff the
Contractor fisils to require a change order within the time allowed, the Contractor waives its right
to make any claim or submit subsequent change order requests for that portion of the contract
worlc If the Contractor disagrees with the equitable adjustment the Contractor must .complete
the change order work; however, the Co~;u~sctor may elect to protest the adjustment as provided
below:
A. Procedure and Protest bv the Contractor. If the Contractor disagrees with
anything required by a change order, another wiliten order, or an oral
order from the City, including any direction, instruction, interpretation, or
determination by the City, the Contractor shall:
1. Immediately give a signed wsiiien notice of protest to the City;,
2. Supplement the written protest within fourteen (14) calendar days
with a written statement that provides the following information:
a. The date of the Contract's protest.
b. The nature and circumstances that caused the protest.
c. The provisions in this agreement that support the protest.
d. The estimated dollar cost, if any, of the protested work and
how that estimate was determined.
An analysis of the progress schedule showing the schedule
change or disruption if the Contractor is asserting a
schedule change or disruption.
The Contractor ~hAII keep complete records of e,~t~u costs and time
inon'red as a result of the protested work. The City shall have
access to any of the Cou~uctor's records needed for evaluating the
protest.
3. The City will evaluate all protests, provided the procedures in this
section are followed. If the City determines that a protest is valid,
Pa~ 3 og9
the City will adjust payment for work or time by an equitable
adju~nent. No adjustment will be made for an invalid protest.
B. Contractor's Duty_ to Complete Protested Work. In spite of any protest,
the Contractor shall proceed promptly with the work as the City has
ordered.
C. Coahactor's Acceptance of Chan~ 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.
D. Failure to Protest Constitutes Waive~. By not protesting as this section
provides, the Contractor also waives any additional entitlen~ent and
accepts from the City any wlitten 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 form the City any written or oral order
(including directions, instructions, interpretations, and determination).
& ~ The Contractor shall give written notice to the City of all claims other
than change orders within fourteen (14) calendar days of the occurrence of the events giving rise
to the claims. Any claim for damages, additional payment for any reason, or exxension of time,
whether unde~ this agreement or otherwise, shall be conclusively deemed to have been waived
by the Coat,~tor unless a timely written claim is made in strict accordance with the applicable
provisions of this agreement; or, if(and only if) no such provision is applicable, unless that claim
is set forth in detail in writing and reeeiv~t by the City within seven (7) calendar days from the
date Contractor knew, or should have known, of the facts giving rise to the claim. At a
minimum, a Contra~or's writte~ claim must include the information set forth regarding protests
in Section 7.A~2.a.-e.
FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM
WITHIN THE TI]VIE AI.I.OWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS
ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM
OR CAUSED BY THAT Di~.AY.
Coai~aetor must, in any event, file any claim or bring any suit arising from or eonne~ed
with this agreement within 120 calendar days from the date the contract work is complete.
9. WARRANTY. The Contractor shall correc~ all defects in workmanship and
materials within one year from the date of the City's acceptance of the Contract work. When
P'~cJ~r C~n~a/C_~ In~
Pig~ 4 ~f9
defects are corrected, the warranty for that portion of the work shall extend for one year form 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, ffthe Contractor does not accomplish the corrections within a reasonable time, the City
may complete the corrections and the Contractor shall pay ail costs incurred by the City in order
to accomplish the correction.
10. INDEMNII~CATION. Contractor shall defend, indemnify and hold the City, its
officer, officiais, 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 performance of this agreement, except for injuries and damages caused by the City's
negligence.
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 tiffs agreement is subject.to RCW
4.24.115, ther~ in the event of liability for damages arising ou~ of hodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Contractor and
the City, its officiais, employees, agents and volunteers, the Contractor's liability hereunder shall
be only to the extent of the Contractor's negligence.
IT IS FURTHER SPECWIC^LI.y AND EXPRESSLY UNDERSTOOD THAT THIS
INDEMNIFICATION CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY
UNDER INDUSTRIAL INSURANCE. TITLE 51 RCW, SOI.~.LY FOR THE PURPOSE OF
THIS INDEMNIFICATION. THE PARTIES ACKNOWL~-r~E THAT THEY HAVE
MUTUAI.I.Y NEGOTIATED THIS WAIVE1L
The provisions of this s~don shall survive the expiration or termination of this
agreement.
11. INSURANCE. The Contr~tor shall procure and maintain for the duration ofthis
agreement insurance of the types and in the mounts described below against claims for injuries
to persons or damage to property which may arise fi'om or in connection with thc porforrnan~ of
the work by the Contractor, its agents, representative, employees, subconsuttam~$ or
subcoiK~ ~::tors.
Before b~'nniqg WOrk On the project d~:aeib~d in this agreement, the Contrl~or shall
provide a 'fi e of In evidencing:
1. ~ insurance with limits no less than $1,000,000
combined single limit per accident for bodily injunff and property damage;
and
2. Commerciai Cmnerai Liability insurance w~iKen on an occurrence basis
with limits no less than $1,000,000 combined single limit per oe~a. trreece
Genera/
l~e~f9
and general aggregate for personal injury, bodily injury and propony
damage. Coverage shall include but not be limited to: blanket
contractual; products/completed ope~-aiions/broad form property damage;
explosion, collapse and underground (XCU); and employer's liability.
3. Excess Liability insurance with limits not less than $1,000,000 per
occurrence and aggregate.
Any payment of daductible or self insured retention shall be the sole responsibility of
the Conuactor.
The City, its officials, employees, agents and volunteers shall be named as an
additional insured on the insurance policy, as respects work performed by or on behalf of the
Contractor and a copy of the endorsement naming the City as additional insured shall be attached
to the Certificate of Insurance.
The Contractor's insurance shall contain a clause staling that coverage shill apply
separately to each insured against whom claim is made or suit is brought, except with respects to
the limits of the insurer's liability.
The Contractor's insurance shall be primary insurance as respects the City, and the
City shsn be given thirty (30) calendar days prior written notice by certified mail, re'cum receipt
requested, of any cancellation, suspension or material change in coverage.
12. MISCELLANEOUS.
A. Nondiscrimination. In tho hiring of employees for the performance of'
work under this Agreement or any sub-conlaact hereunder, the Coni~uctor, its sub-co~?uuctors, or
any person acling on behalf of such ConUactor or sub-contractor shall not, by reason of race,
religion, color, sex, national origin, or the presence of any sensory, mental, or physical disability,
discriminate against any person who is qualified and available to perform the work to which the
employment relates.
B. C m Ii with . Conlaactor shall comply with all federal, state
and local laws, rules and regulations throughout eve~ aspect in the performance of this
C. Work Performed at Contractor's !~ul~ Contractor ~hsl! take all
precautions necessary and shall be responsible for the safety of its employees, agents, and
subcontractors in the performance of this agreement. All work shall be done at Contractor's own
risk, and Couuactor shall be responsible for any loss of or damage to mnterials, tools, or other
articles used or held for use in connection with the work.
D. ~er of B~h. The failure of the City to insist upon strict
per~ormsnce of any of the terms and rights contained herein, or to exercise any option herein
Fischer Generol C. ontrtw, l~ Inc.
Pa~ 6 o~ 9
conferred in one or more instances, shall not be constructed to be a waiver or relinquishment of
those terms and rights and they shall remain in full force and effect
E. Governing Law. This agreement shall be governed and construed in
accordance with the laws of the State of Washington. If any dispute arises between the City and
Contractor under any of the provisions of this agreement, resolution of that dispute shall be
available only through the jurisdiction, venue and rules of the Kitsap County Superior Court,
Kitsap County, Washington.
F. Attorney's Fees. To the extent not inconsistent with RCW 39.04.240, in
any claim or lawsuit for damages arising fi.om the parties' performance of this agreement, each
party shall be responsible for payment of its own legal costs and attorney's fees incurred in
defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the
City's right to indemnification under Section 10 of this agreement.
G Written Notice. All communications regarding this agreement shall be
sent to the parties at the addresses listed on the signature page of this agreement, unless
otherwise notified. Any written notice shall become effective upon delivery, but in any event
three (3) calendar days after the date of mailing by registered or certified mall, and shall be
deemed sufficiently given if sent to the addressee at the address stated on this agreement.
H. Assignment. Any assignment of this agreement by the Contractor without
the written consent of the City shall be void.
I. 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.
J. Severability. If any one or more sections, sub-sections, or sentences of
this agreement are held to be unconstitutional or invalid, that decision shall not affect the validity
of the remaining portion of this agreement and the remainder shall remain in full force and
effect.
K Liquidated Damages. CITY and CONTRACTOR recognize that time is
of the essence of this Agreement and that the CITY will suffer financial loss if the work is not
completed within the times and phases specified in Section 2 herein, plus any extensions thereof
allowed in accordance with Section 7 of this agreement or the General Conditions &
Supplementary Conditions. The CITY and CONTRACTOR also recognize the delays, expense,
and difficulties involved in proving in a legal proceeding the actual loss suffered by the CITY if
the work is not completed on time. Accordingly, instead of requiring any such proof, the
CONTRACTOR shall pay the CITY $100.00 as liquidated damages for each day that expires
after the dates or times specified in Section 2 herein for Substantial Completion and Final
Completion of the work in accordance with the General Conditions and Supplementary
Conditions. This provision has been specifically negotiated.
L. Entire Agreement. The written provisions and terms of this agreement,
together with any attached Exhibits, supersede all prior verbal statements by any representative
Fischer General Contracting, Inc.
Page 7 of 9
of the City, and those statements shall not be construed as forming a part of or altering in any
manner this agreement. This agreement and any attached Exhibits contain the entire agreement
between the parties. Should any language in any Exhibit to this agreemem conflict with any
language contained in this agreement, the terms of this agreement shall prevail.
IN WITNESS WltEREOF, the parties below have executed this agreement.
l~an }~iscl~er - - Cary Bozeman
Title: President Title: Mayor
DATE 6 -/0-0,,~ OATE~
Notices to be sent to: Notices to be sent to:
CONTRACTOR: CITY OF BREMERTON:
Dan Fischer Project Administrator
Fischer General Contracting, Inc. 239 Fourth Street
P.O. Box 661 Bremerton, WA. 98337
Poulsbo, WA 98370
Bremerton City Attorney
ATTEST:
Fischer General Contracting, Inc.
Page 8 of 9
EXHIBIT "A"
PLANS & SPECIFICATOINS
Fischer General Contracting, Inc.
Page 9of9