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HomeMy WebLinkAbout1 - Original Submission_ Goods and Services Agreement landscape working copy 2-2-21 atworkPage 1 of 9 Goods and Services Agreement Rev. 06/2020 GOODS AND SERVICES AGREEMENT THIS AGREEMENT is entered into between the City of Bremerton, a Washington Municipal Corporation ("City"), and At Work Commercial Enterprise, LLC ("Vendor"), whose mailing address is: 1935 – 152nd Place NE, Bellevue, WA 98007. The parties agree as follows: I. VENDOR SERVICES. The Vendor shall provide the following goods and materials and/or perform the following services for the City: The vendor agrees to perform the services more specifically described in the Scope of Work and Duties, including any attachments thereto, attached hereto as Exhibit A, which is incorporated by reference herein. The Scope of Work and Duties may be modified only pursuant to section “VI Changes” of this agreement. If the Scope of Work and Duties provides for unspecified additional services, such services shall only be performed upon the express written request of the City. Vendor further 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 as outlined in the work Specifications. II. TIME OF COMPLETION/TERM. Vendor shall commence the work and provide all goods, materials, and services on receiving of the City’s official Notice to Proceed, after contract award and will terminate on June 30th, 2026 unless terminated earlier pursuant to this agreement. This time period is the initial five (5) year “Term” of the Agreement, with an additional two (2), two (2) year extensions that may be offered, negotiated, and accepted by both parties, subject to City Council approval. III. COMPENSATION. The City shall pay the Vendor in an amount not to exceed $7,000.00 per month, including applicable Washington State Sales Tax, for the goods, materials and services contemplated in this Agreement. The City shall pay the Vendor for services at the specified rates, attached hereto as Exhibit B, Bid Proposal, which is incorporated by reference herein. Vendor shall submit regular billing statements describing work performed and amount charged for landscape maintenance and service. The descriptions and work locations shall conform to and fall within the categories set out in the Scope of Work. Upon receipt of a conforming billing statement, the City shall promptly process the payment. A. Defective or Unauthorized Work. The City reserves its right to withhold payment from Vendor for any defective or unauthorized services. If vendor is unable for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services on its own or from a third party, and Vendor shall be liable to the City for any additional 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 Agreement price specified above. The City further reserves its right to deduct the cost to complete this Agreement, including any Additional Costs, from any and all amounts due or to become due the Vendor. IV. INDEPENDENT CONTRACTOR. Vendor is and shall be at all times acting as an DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D Page 2 of 9 Goods and Services Agreement Rev. 06/2020 independent contractor and not as an employee of the City. The Vendor shall secure at its expense and shall be responsible for all payments of income tax, social security, state disability insurance compensation, unemployment compensation, and all other payroll deductions for the Vendor, officer, agents, employees, and subcontractors. The Vendor shall also secure all applicable business licenses, if required, in connection with the contract services, including all required licenses for Vendor's officers, agents, employees and subcontractors. The vendor shall also adhere to all applicable Washington State prevailing wage rate provisions. V. TERMINATION A. The City may terminate this Agreement for good cause. "Good cause" shall include, without limitation, any one or more of the following events: 1. The Vendor’s refusal or failure to supply a sufficient number of properly skilled workers or proper services for completion of this Agreement. Or failure to perform services as outlined in the work specifications. 2. The Vendor’s failure to complete this Agreement within the time specified in this Agreement. 3. The Vendor’s failure to make full and prompt payment to subcontractors or for material or labor. 4. The Vendor’s failure to comply with federal, state or local laws, rules or regulations. 5. The Vendor’s filing for bankruptcy or becoming adjudged bankrupt. If the City terminates this Agreement for good cause, the Vendor shall not receive any further monies due under this Agreement until the goods, materials, and services required by this Agreement are completed and fully performed by the City or a third party of the City’s choosing. B. The City may terminate this Agreement without cause “For Convenience.” 1. The City shall have the right upon ninety (90) days written notice to the other party to terminate this Agreement without cause. If this Agreement is so terminated, the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. VI. CHANGES. The City may issue a written 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 reason, that a change order is necessary, Vendor must submit a written change order request to an authorized agent of the City within fourteen (14) calendar days of the date Vendor knew or should have known of the facts and events giving rise to the requested change. If DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D Page 3 of 9 Goods and Services Agreement Rev. 06/2020 the City determines that the change increases or decreases the Vendor'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 Vendor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Vendor 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 Vendor fails to require a change order within the time allowed, the Vendor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Vendor disagrees with the equitable adjustment the Vendor must complete the change order work; however, the Vendor may elect to protest the adjustment as provided below: A. Procedure and Protest by the Vendor. If the Vendor 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 Vendor shall: 1. Immediately give a signed written 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 Vendor'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. e. An analysis of the progress schedule showing the schedule change or disruption if the Vendor is asserting a schedule change or disruption. 3. The Vendor shall keep complete records of extra costs and time incurred as a result of the protested work. The City shall have access to any of the Vendor's records needed for evaluating the protest. The City will evaluate all protests, provided the procedures in this section are followed. If the City determines that a protest is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. B. Vendor's Duty to Complete Protested Work. In spite of any protest, the Vendor shall proceed promptly to provide the goods, materials and services required by the City under this Agreement. C. Vendor's Acceptance of Changes. The Vendor 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 Vendor 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 DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D Page 4 of 9 Goods and Services Agreement Rev. 06/2020 by the change. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Vendor 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 Vendor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). VII. CLAIMS. The Vendor 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 extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Vendor 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 received by the City within seven (7) calendar days from the date Vendor knew, or should have known, of the facts giving rise to the claim. At a minimum, a Vendor's written claim must include the information set forth regarding protests in Section VI(A)(2)(a)-(e). 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. Vendor must, in any event, file any claim or bring any suit arising from or connected with this Agreement within 120 calendar days from the date the contract work is complete. VIII. INDEMNIFICATION. Vendor 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 performance of this Agreement. Vendor’s obligation 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 Vendor'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 Vendor and the City, its officers, officials, employees, agents and volunteers, the Vendor's liability hereunder shall be only to the extent of the Vendor's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D Page 5 of 9 Goods and Services Agreement Rev. 06/2020 INDEMNIFICATION CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. IX. INSURANCE. The Vendor shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the contract work by the Vendor, its agents, representatives, employees or subcontractors. Before beginning work on the project described in this Agreement, the Vendor shall provide a Certificate of Insurance evidencing: A. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and B. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; and employer's liability. C. Excess Liability insurance with limits not less than $1,000,000 limit per occurrence and aggregate. D. Professional Liability insurance with limits no less than $1,000,000 limit per occurrence/claim. E. Workers Compensation insurance as statutorily required by the Industrial Insurance Act of the State of Washington, Title 51, Revised Code of Washington and employer's liability with limits not less than $1,000,000. Any payment of deductible or self-insured retention shall be the sole responsibility of the Vendor. All required policies shall be provided on an “occurrence” basis except professional liability insurance (if required), which shall be provided on a “claims-made” basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Vendor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies. The Vendor's Commercial General Liability insurance shall contain a clause stating that DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D Page 6 of 9 Goods and Services Agreement Rev. 06/2020 coverage shall 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 Vendor's insurance shall be primary and non-contributory insurance as respects the City and shall contain a waiver of subrogation against the City for claims arising out of any operations, liabilities and obligations to which coverage applies. It shall be an affirmative obligation upon Vendor 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 6th Street, Suite 100, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change of any insurance policy required herein, and failure to do so shall be construed to be a breach of this Agreement. The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. X. MISCELLANEOUS. A. Licenses and Taxes. Vendor shall possess a current Bremerton Business License and any regulatory license required to fulfill Vendor's obligations under this Agreement. B&O taxes shall be paid when due, and Vendor, by this Agreement, assigns any payments due under this Agreement to the City Clerk for payment of such taxes which have been declared delinquent. B. Conflict and Precedence. In the event of a conflict between the contract documents, the document which rates higher on the following list shall take precedence: 1. Amendments / Change Orders to Goods and Services Agreement 2. Goods and Services Agreement 3. Specifications 4. Scope of Work and Duties (Exhibit A) 5. Vendor’s Proposal (Exhibit B) C. Documents Incorporated by Reference. The following documents are incorporated by reference, including but not limited to: 1. Scope of Work and Duties (Exhibit A) 2. Specifications, 3. Proposal, (Exhibit B) and 4. Non-Collusion Affidavit. D. Use of Photographs and Images. Vendor shall not use or distribute photographs or images depicting City officials, personnel, property, or equipment whether prepared by Vendor or provided by City without prior written consent of the City. The City will not unreasonably withhold its consent. E. Equal Employment Opportunity Statement. In the hiring of employees for the performance of work under this Agreement, the Vendor, its subcontractors, or any person acting on behalf of Vendor shall not discriminate in any employment practice on the basis of age (40+), DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D Page 7 of 9 Goods and Services Agreement Rev. 06/2020 sex, race, creed, color, national origin, sexual orientation/gender identity, marital status, military status, or the presence of any physical, mental or sensory disability. F. ADA Statement. The City of Bremerton does not discriminate on the basis of disability in programs and activities, which it operates pursuant to the requirements of the Americans with Disabilities Act of 1990, and ADA Amendments Act. This policy extends to both employment and admission to participation in the programs, services and activities of the City of Bremerton. Reasonable accommodation for employees or applicants for employment will be provided. G. Compliance with Laws. Vendor shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this Agreement. H. Prevailing Wages. Vendor 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. Vendor 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 provisions. The latest prevailing wage rate revision issued by the Department of Labor and Industries is attached. I. Work Performed at Vendor's Risk. Vendor shall 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 Vendor's own risk, and Vendor 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. J. 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 Vendor under any of the provisions of this Agreement, resolution of that dispute shall be available exclusively under the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington. K. Attorney's Fees. In any claim or lawsuit for damages arising from 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 IX of this Agreement. L. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed below, 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 mail and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement. DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D Page 8 of 9 Goods and Services Agreement Rev. 06/2020 Notices to be sent to: Notices to be sent to: CITY: VENDOR: Attn: Chris Mottner Attn: John Song City of Bremerton At Work Commercial Enterprise 345 6th Street, Suite 100 1935 152nd Pl. NE Bremerton, WA 98337-1891 Bellevue, WA 98007 M. Assignment. Any assignment of this Agreement by the Vendor without the written consent of the City shall be void. N. 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 Vendor. O. Severability. If any one or more sections, subsections, 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. P. Entire Agreement. The written provisions and terms of this Agreement, together with any attached Exhibits, supersede all prior verbal statements by any representative 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 Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D Page 9 of 9 Goods and Services Agreement Rev. 06/2020 IN WITNESS WHEREOF, the parties below have executed this Agreement. CITY: VENDOR: City of Bremerton By: By: Print Name: Print Name: Its: Its: Date: Date: APPROVED AS TO FORM: ATTEST: By: By: ROGER A. LUBOVICH, Bremerton City Attorney ANGELA HOOVER, City Clerk R:\Legal\Legal\Forms\FORMS ON COBWEB\Goods and Services Agreement Rev 06 2020.docx DocuSign Envelope ID: 9A52C76A-BC82-44A3-B34C-4DFD61E53F8D 6/23/2021 AtWork! Commercial Enterprises,LLC Bob Thompson Chief Financial Officer 6/23/2021 Greg Wheeler