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5394
MATERIALS TESTING & CONSULTING
GSA - Lower Wheaton Way Bridge-to-Bridge Project
Engineering
LEG 12-1
7/2/2014
11/27/2014
12/1/2014
2015
Comments :
GOODS AND SERVIC�S AGREEA7ENT
THIS AGREEMENT, is entered into bet�veen the City of Bremerton, a\Vashington Municipal Corporation ("City"), and
vlaterials Testing and Consulting, Inc. ("Vendor"), whose mailing address is:
5451 NN Newbem Hill Road, Suite ]O1, Silverdale. \VA 98383.
The parties agree as follo�vs:
1. VENDOR SERVICES. Tlie Vendor shall provide the following goods and materials and/or perfonn the follo�ving services
for tl�e City: Materials Testing Services for tlie Lo�ver \Vl�eaton 1Vay Bridge-to-Bridge Trail Project
2. TI�IC OF CO�IPLETION. Vendor sliall complete tl�e work and provide �II goods, materials and services witliin 148
c�lendar days from tlie date all parties liave signed this Agi�eement.
3. COR•1PGNSATION. The City sliall pay the Vendor the follo�ving amounts, not to exceed tiie total amount of �23,000.00
ii�cluding applicable 1Yashington State Sales Tax, according to MTC's Proposal based on its estimate assumplions, and lo the
following schedule: Eahibit B— Limiteci �ee Scliedule (See Attachment). Payment �vill be for actual �vork performed, regardless of
the amounts estimated.
A. Defeclive or Unauthoriud 1Vork. The City reserves its right to �vitfil►old payment from Vendor for any defective or
unautliorized goods, materials or services. If Vendor is unable, for any reasoq to complete any part of this
tlgreement, tl�e City may obtain Ihe goods, materials or services by Agreement or othenvise, and Vend�r shall be
liable to the City for any additional costs incurred by the City. "Additional costs" shall mean All reasonable costs,
inc)uding legal costs and attomey fees, incurred by ll�e City beyond the masintum Agreement price specified above.
` The City fuilher reserves its right to deduct the cost to complete this Agreement, including any Additional Costs,
Gom any and all amounts due or to become due the Vendor.
4. 1NDEPENDENT CONTRACTOR. Contractor is and shall be at all times acting as an independent contractor and not as an
employee of the City. Tl�e Contractor shall secure at its expense. and shall be responsible for all payiuents of income tax, social
security, slate disabilily insurance compensation, unempbyment compensation, and all other payroll dedi�ctions for the Contractor,
officer, agents, employees and sub-contractors. The Contractor shall also secure all applicable business licenses, if required, in
connection �vith the contract services, including all required licenses for Contr�ctor's officers, asents, employees and sub-contractors.
5. TERl1•11NATION. Tlie City may termiru�te this Agreement for good cause. "Good canse" shall include, �vithout limitation,
any one or more of the follo�ving events:
A. Tlzc Vendor's refusal or failure to supply a sufficient mimber of properly sf:illed workers or proper materials far
comptetion of this Agreement.
Rcv. G/14
B. The Vendor's failure to complete this Agreement �vithin the time specified in this Agreemenl.
C. The Vendor's failure to mTke fi�ll and prompt payment to subcontractors or for material or labor.
D. The Vendor's failure to complete �vith federal, state or local laws, rules or regulations.
E. The Vendor's filing for bankruptcy or becoming adjudged banl:nipt.
If the City terminates this Agreement for good cause, the Vendor shall not receive any fiirther monies due under this
Agreement until the goods, materials and services required by this Agreement are completed and fidly performed.
G. CHANGES. The City m1y issue a�vritten change order for any change in the goods, materials or services to be provided
during the performance of this Agreement If the Vendor determines, for any re�uon, that a change order is necessary, Vendor must
submit a�vritten change ordcr request to an authorized agent of the City ���itt►in fourteen (14) calendar days of the date Vendor knew or
should have kno�vn of the facts and eveuts giving rise to the requested cliange. If the City determines that the change increases or
decreases the Vendor's costs or time for perforn�ance, the City �vill make an equitable adjustment. 7'he City �vill attempt, in good
faith, to reach agreemcnt �vith thc Vendor on all equitable adjustments_ Ho�vever, if tlie parties are unable to agrc�e, the City �vill
detern�ine the equitable adjustment as it deems appropriate. The Vendor shall proceed �vith the change order �►ork upon receiving
either a�vritten change order from the City or an oral order from tl�e Ciry before actually recei� ing the �<<ritten change order. If the
Vendor fails to require a ci�ange order �vithin the time allo�ved, the Vendor �vaives its rigl�t to make any claim or submit subsequent
change order requests for that portion of the conlract �vork. [f Qie Vendor disagrees wilh Ihe equitable adjustment the Vendor must
complete the change order ��ork; hotivever, the Vendor may efect to protest tlie adjustment as provided belo�v:
A. Procedure and Protest bv the Vendor. If the Vendor disagrees �vith anything required by a chai�gc order, anotl�er
written order, or an oral order from the City, including any direction, instruclion, interprelation, or determination by
the City, the Vendor shall:
Immediately give a signed �vritten notice of protest to the City;
2. Supplement the written protest within fourteen (14) calcndar days ��itl� a statement that provides thc
follo�ving infonnatioo:
a. The date of ihe Vendor's protest.
b. The nature and circumstances that caused the protest.
c. Tlie provisions in this Agreemcnt that support the protest.
d. The estimnted dollar cost, if any, of the protested �vork and ho�v th�t estimate ��as determined.
e. An analysis of the progress schedule showing the schedulc clu�nge or disruption if the Vendor is
asserting a scl�edule change or disn�piion.
3. The Vendor shall keep complete records of extra cosls and time incnrred as a resnit of the protested ��ork.
The Cily sliall ha�e access to any of the \'endo►'s records needed for evaluating the protest.
The City �vill evaluate all protests, provided the procedures in this section are follo�ved. If tlie City determines that a
protest is valid, ihe City �vill adjust payn►cnt for �vork or time by an equitable adjustment. No adjustment �vill be
made for an invalid protest.
B. Vendor's Duty to Complete Protested \Vork. In spite of any protest, the Vendor shall p�oceed promptly to provide
the goods, materials and sen�ces required by the City under il�is �greement.
C. Vendor s Acceptance of Chan�. The Yendor accepts all requirements of a change o►der by: (1) endorsing it, (2)
writing a separate acceptance, or {3) not protesting in the �vay tliis section provides. A change order that is accepted
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Rev. 6/14
by Vendor as provided in this section shell constitutc full payment and fin�l settlement of all claims for contract time
a��d for direct, indirect and consequential costs, including costs of delays related to any work, either covered or
affected by the changc.
D. Failure to Protest Constitutes \Vaivcr. By not protesting as this section provides, the Vendor also �vaives any
additional enlitlement and accepts from the City any written or oral order (including directions, instructions,
inter��retations, and determivation).
E. Failurc to Follo�v Procedures Constitutes 1Vaiver. By failing to follo�v the procedures of this sectio�i, tl�e Vendor
completely �vaives any claims for protested �vork and accepts from the City any �vrittcu or oral order (including
directions, instructions, inten�retations, and deterniination).
7. CLA1�1S. The Vendor shall give �vritten notice to the City of all claims other than change orders �vithin 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
exteusion of time, tvhether under this Agreement or othenvise, shall be conclusively deemed to have been waived by the Vendor
tmless a timely ���ritten claim is made in.strict accordance �vitli the �pplicaUle provisions of this Agreement; or, if (and only i fl no such
provision is applic�ble, unless that claim is set forth in detail in �vriting and received by the City �+�ithin seven (7) calendar days from
the date Vendor kne�v, or should have kno�vn, of the facts giving rise to the claim. At a minimum, a Vendor's ���ritten claim must
include the inforn�ation set fbrlli regarding protests in Section 6(A)(2)(a)-(e).
- FAILURE TO PROVIDE A COViPLETE, �VRITTEN iVUTIFICATlO�! O� CLAI\4 �Y1THlA! THE TIME ALL011'ED
SHALL BE AN ABSOLUTE �VAIVER OP ANY CLATMS ARISING I� ANY 1VAY FRO�1 THE FAC'I'S OR EVENTS
SURROUNDING THAT CLAIVi OR CAUSED BY THAT DELAY.
Veador musl, in �ny event, file any claim or bring any suit arising from or com�ected �vith this Agreement �vitl�in 120
calendar days from tl�e date the contract ��-orl: is complete.
8. \�'ARKAIVTY. The Vendor shall correct all defects in �vorkmanship a�zd materials �vithin one year from the date of the
City's acceptance of the Contract �vork. �Vhen defects are corrected, the warranty Por tliat portion of tl�e ���ork shall extend for one year
from tlie date such correction is completed and accepted by the City. The Vendor shall begin to correct any defects �vithin seven (7)
calend�r days of its receipt of notice from the City of the defect. If the Vendor does not accomplisli the corrections �vitliin a
reasonable time, the City may complete the corrections and the Vendor shatl pay all costs incurred by the City in order to accomplish
the correction.
9. IiVDE11iY1FICATION. Vendor shall defend, indemnify ai►d hold the Cily, its officer, officials, employees, �gents and
volunteers harmless froni any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out
of or in connection �vith the perforn�ance of this Agrecment. Vendor's obligalion to indemnify shall not extend to that portion of
damages caused by the City's sole negligence.
The City's inspection or acceptance of any of Veiidor's ��ork �vhen completeci shall not be grounds to avoid any of these
covenants of indemnification.
Shoald a court of competent jurisdiction detennine th�t this Agreement is subject to RC1�' 4,24.1 I5, then, in t[►e event of
liability for damages arising out of bodily injury to persons or datnages to property caused by or resulting from tl►e concurrent
3
Rcv. 6/14
negligencc of the \�cndor �nd thc City, its officcrs, officials, employees, agents and voluntecrs, the Vendor's liability hereunder shall
be only to ihc extent of the Vcndor's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSI,Y i1NDERSTOOD THAT TH1S iNDF.MNi�iCAT10N
CONSTITUTGS TFIG CONSULTAiVT'S 1YAIVER OF 1MMUI�'!TY UI�'DER INDUSTRfAL INSURANCE, TITLE 51 RC1V,
SOLELY rOR THE PURPOS�S OP THIS IND�MNIi'ICATION. THE PARTIES ACKNO�VLEDGE THAT THEY HAVG
MUTUALLY NEGOTIATED THIS \VAIVER.
The provisions of this section shall survive the expiration or ter�uination of this Agreement.
10. INSURANCE. The Vendor shall procure and maintain for the duration of this Agreement, insurance against claims for
injaries to persons or damage to property tl�at may arise from or in connection �vith the performaiice of the Conlract �vork by the
Vendor, its agents, representatives, employees or subcontractors.
Before beginning work on the project described in this Agreement, the Vendor shall pro�ide a Certificate of Insurance
evidencing:
l. Automobile Liabi(ity insurance �vith limits no less than �I,000,000 combined single iimit per accident for bodily
injury and property damage; and
2. Commercial General Liabilitv insurance �vritten on an occurrence basis �vith limits no less than S1,000,000
combined single iimit per cecurrence a�zd $2,000,000 aggregate for personal injury, lwdily injury and property
damage. Coverage shall include but not be limited to: blanket contractual; productsJcompleted operations/broad
form property damage; and employer's liability.
Any payment of deductible or self insured retenlion shall be the sole responsibility of the Vendor.
All recJuired policies shall be provided on an "occurrence" basis except professional liabilily insurance (if required), �vhich
sliall be provided on a"claims-made" basis.
The City shall be named as au additional insured on tlie Commercial General Liability insurance policy, as respects �vork
perforn�ed by or on behalf of the Vendor and a copy of the endorsement naming the City as additionai insured shalt be
attached to tl�e Certificate of Insurance. The City reserves the righl to receive a certiGed copy of all the required insurance
policies.
"i'he Vendor's Commercial Gencral Liability insurance sltall contain a clause stating that coverage shall apply separately to
each insured lgainst �vhom claim is made or suit is brought, except �vith respects to the limits of the ins►rcer's liability.
The Vendor's insurancc shall be primary insurance as respects the City and and it shall be an atlirmative obligation upon
Consultant to advise the City's Risk Manager by fax at (360) 473-5161, or by certified mail, return receipt requested to City
of Bremerton, attn: Risk Management, 345 G'� Street, Suite 60Q, Bremerton, �1'A 98337 �vithin tw�o days of the cancellation,
suspension or substantive change of any insurance policy set out herein, and failure to do so sl�all be constnied to be a breach
of this Agreement.
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Re��. 6/14
The City also reserves its unqualified right lo recJuirc at any time aad for any reason, proof of coverage in tlie form of a
duplicate of the insurance policy with all endorsements as evidence of coverage.
ll. MISCELLANEOUS.
A. Licenses and Taxes. Vendor shall possess a current Bremerton Business License and �ny regidatory license required
to fidfill Vendor's obligations under tliis contract. B&O ta�es sliall be paid �vhen due, and Vendor, by this
agreeroent, assigns any payments due under this contract to Ihe City Clerk for payment of such taxes which have
bcen declarcd delinquent.
B. Conflict and Precedence. In the event of a conflict behveen the contract documents, the document �vhich rates
Itiigher on the follo�ving list shall take precedence:
1. Addenda, if any,
2. Contract,
3. Specifications,
Q. Terms and Condilions,
5. Contractor's proposal.
C. Documents lncoraor�ted bv Reference. The following doc�mients are incorporated by reference, to include, but not
be limited to: ,
I. Specifications (from the Lo�ver �Yheaton Nay Bridge-to-Bridge Trail Contract), and
2. Proposal.
D. Use of Photo�phs and Ima�es. Consultanl shall not use or distribute photographs or images depicting City
o�cials, personnel, property, or equipment �vhetl�er preparcd by Consultant or provided by City �vitho►rt prior
�vritten consent of the City. The City �vill not unreasonably �vithhold its consent.
E. Nondiscriminatia�. ln the hiring of emptoyees for the perforniance of �vork under this Agreement the Vendor, its
subcontractors, or any person acting on behalf of Vendor shall i�t, by reason of race, religion, color, sea, se:cual
orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any
person ��I�o is qualified and available to perForn� the �rnrk to �vhich Ihe employment relates.
F. Conipliance �vith La��s. Vendor sh�l! comply �vith all federal, state and local laws, ndes and regulations throughout
every aspect in tlee perfom�ance of this Agrecment.
G. 1Vork PerfornTed af Vendor's Risk. Vendor shall take all precautions necessary and shall be responsible for the
safety of its employees, agents, and subcontractors in the perforn�ance of this Agreement. All «ork shall be done at
Vendors o�vn risk, and Vendor shall be respo�uible for any loss of or damage to materials, tools, or other articles
used or held for use in connec;tion �vith the +vort:.
H. Governing La�v. This Agreement shall be governed and caistrued in accordance �vi1h the la�vs of tl�e State of
. 1Vashington. If �ny dispute arises bet�veen the City and Vendor under any of the provisions of this Agreement,
resolulion of that dispute shall be available exclusively under the jurisdiction, venue and rules of the Kitsap County
Superior Court, Kitsap County, \Vashington.
I. Attorne��'s Fees. In any claim or la�vsuit for damages arising from the parties' perforniance of this Agreement, each
party shall be responsible for paymcnt of i1s o�vn legal costs and altorney's fces incurred in defending or bringing
such claim or la�vsuit; ho�ti�ever, notl�ing in this subsection shal{ limit the City's right to indemnification under
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Rev. 6/14
J
K.
L.
M.
N.
Seclion 9 of tl�is Agreement.
1Vritten Notice. All communications regarding this Agreeme�it sh�ll Ue sent to the parties at the lddresses listed
belo�r, unless oUienvise notified. Any �vritten notice sliall become effective upon delivery, but in any event three (3)
calendar days after the date of mailing by registered or certified mail, and sh�ll be deemed sufticiently given if sent
to the addressee at the address stated in this Agreement.
Notices to be sent to:
VENDUR:
Atln: Tim 1�lacke
5451 NN Ne�vberry Hill Road, Suite 101
Silverdale. �VA 98383
Notices to be sent to:
CITY:
Attn: Eduardo Aban, P.E.
City of Bremerton
3027 Olympus Drive
Bremerton,lVA 98310
Assigmnent. Any assi�nment of this Agreement by the i�endor �vithout the �vritten consent of the City shall be void.
Modification. A'o �vaiver, alteration, or modification of any of the provisions of this Agreement shall be binding
unless in �vriting and signed by a duly authorizcd representative of the Cih� and ��endor.
Severabilitv. If any one or mure sections, sulrsections, or sentences of this Agreement are held to be
imconstitutional or invalid, that decision sl�all not affect the validity of tl�e remaining portion of this Agreement and
the remainder shall rem�in in fidl force and effect.
Entire Agreement. The �vritten provisions and terms of this Agreement, together �vith any attached Exhibits,
supersede all prior verbal statements by any representative of tlie City, and tliose statements shall not be construed as
forming a part of or altering in any manuer this Agreement. Tl�is Agrcement aud any attacl►ed Exhi6its contaiii tlie
entire Agreement behveen the parties. Should a��y l�nguage in a��y Exl�ibit to this Agreement con0ict wiili any
language contained in this Agreement, the tern�s of this Agreement shall prevail.
1N 1YITI�ESS 1VHEREOF, tl�e parties helow have executed this Agreement.
VENDOR:
Materials Testing and Consulting,lnc.
By: ,
Print Name: im Macke
lts: Kitsa Re ion General Mana er
Date: �_/��
Cy fl M'�
City of' Bremerton
By: Z,�'1��
Print \ame:�Ry'�t�nt Lltiq,/ A. /�'�iaw��
Its:l�fayer �rrbl.� �✓o� � ���-s�N`
Date: �// r H
APPR ► .
By:
' remerton Cily Attorney
A•
City Clerk
G
Rev. 6/14