HomeMy WebLinkAbout08/10/2022 STUDY SESSION AGENDA PACKET______________________________________________________________
CITY COUNCIL 345 6th Street, Suite 100, Bremerton, WA 98337 Phone (360) 473-5280
WEDNESDAY, AUGUST 10, 2022
CITY COUNCIL STUDY SESSION AGENDA
5:00 PM – Via Zoom Webinar
City Council is currently conducting all meetings via Zoom Webinar. The Study Session is open to the
public to listen in, but there will be no opportunities for input; the content of these items is subject to change;
and no action is anticipated. If approved by the Council, these items will be placed on the August 17, 2022
City Council Meeting Agenda…
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Public questions or comments may be submitted ahead of time to City.Council@ci.bremerton.wa.us
A. BRIEFINGS ON AGENDA BILL ITEMS
1. Confirm Appointment of Vanessa Acierto to Bremerton Kitsap Access Television (BKAT)
Citizens Advisory Committee
2. Public Works Agreement with Intermountain Slurry Seal, Inc. for the 2022 to 2024 Unit Priced
Contract for the Preservation of City Streets by Chip Seal and/or Slurry Seal Project
3. Public Works Agreement with Nova Contracting, Inc. for the Well 9R Site Development
Project
B. GENERAL COUNCIL BUSINESS
o Public Safety Committee Briefing (8/4/22 Meeting) – Chair Jennifer Chamberlin
o Other General Council Business
C. ADJOURNMENT OF STUDY SESSION
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
SUBJECT: Confirm Appointment of
Vanessa Acierto to the Bremerton Kitsap
Access Television (BKAT) Citizens Advisory
Committee
Study Session Date: August 10, 2022
COUNCIL MEETING Date: August 17, 2022
Department: Executive
Presenter: Mayor Wheeler
Phone: (360) 473-5266
SUMMARY: The Mayor is seeking confirmation of the appointment of Vanessa Acierto to the BKAT
Citizens Advisory Committee as the City of Bremerton Representative. It is a one-year position from
Sept. 13, 2022 through Sept. 12, 2023.
ATTACHMENTS: Application to the committee is available in the Mayor’s Office
FISCAL IMPACTS (Include Budgeted Amount): None.
STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation
STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing
RECOMMENDED MOTION:
Move to confirm the appointment of Vanessa Acierto to the BKAT Citizens Advisory Committee for a
one-year term.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/07/15
A1
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
SUBJECT: Study Session Date: August 10, 2022
Public Works Agreement with Intermountain
Slurry Seal, Inc. for the 2022 to 2024 Unit
Priced Contract for the Preservation of City
Streets by Chip Seal and/or Slurry Seal
Project
COUNCIL MEETING Date: August 17, 2022
Department: Public Works & Utilities
Presenter: Dave Carter
Phone: (360) 473-5333
SUMMARY:
The City annually programs pavement preservation using Chip Seal and/or Slurry Seal, and bids the
work each year; however, for 2022 we have prepared a Unit Priced Contract that follows RCW
35.22.620. Using this approach, we will award a three-year contract that establishes the unit price of
each of the materials to be incorporated into the work and will execute annual task orders that define
the road to be preserved; the 2022 work is generally located within West Bremerton as shown in the
attached figure. The project was competitively bid, and 2 bids were received. Intermountain Slurry
Seal, Inc. was the lowest responsive responsible bidder at $1,684,520.34 for the 3-year contract.
ATTACHMENTS:
1) 2022-2024 Chip Seal and Slurry Seal Unit Priced Contract; 2) Bid Results; 3) Site Plan
FISCAL IMPACTS (Include Budgeted Amount): This project is included in the Transportation
Capital Projects Fund with a budget of $650,000.
STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation
STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing
RECOMMENDED MOTION:
Move to approve the Public Works Agreement with Intermountain Slurry Seal, Inc. for the 2022–2024
Unit Priced Contract for the Preservation of City Streets by Chip Seal and/or Slurry Seal Project in
the amount not to exceed $1,684,520.34, including sales tax; and authorize the Mayor to finalize and
execute the contract with substantially the same terms and conditions presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 11/09/2021
A2
2022 – 2024 Chip Seal and Slurry Seal Unit Priced Contract
PUBLIC WORKS AGREEMENT
THIS AGREEMENT is entered into between the City of Bremerton, a Washington
Municipal Corporation (“City”), and Intermountain Slurry Seal, Inc.
(“Contractor”), whose mailing address is 1120 Terminal Way, Reno NV 89502
.
The parties agree as follows:
1. CONTRACTOR SERVICES. The Contractor shall perform the following
services for the City: Chip Seal or Slurry seal various streets over the course of this three year
unit priced contract.
Contractor shall complete the WORK as specified or indicated in the CITY’s Contract Documents
entitled 2022 – 2024 Chip Seal and Slurry Seal Unit Priced Contract.
2. TIME OF COMPLETION. The WORK shall obtain Physical Completion within
the number of working days established under each assigned Work Order.
3. COMPENSATION. The City shall pay the Contractor for completion of the
WORK in accordance with the Contract Documents. The City has established this contract as a Unit
Priced Contract for a three- (3) year period with a possible additional option year. Work under this
contract will be authorized by Work Order using a Work Order form that will describe the work
including total quantities, associated unit prices, and a total Work Order Price. Unit prices shall be
based on the Bid Schedule, including annual adjustment as described in the Proposal Form.
Applicable Washington State Retail Sales Tax on this contract shall be governed by
WAC 458-20-171 and its related rules for the work contemplated in this agreement. The
Contractor shall invoice the City monthly. The City will pay for the portion of the work described
in the invoice that has been completed by the Contractor and approved by the City. The City
payment shall not constitute a waiver of the City’s right to final inspection and acceptance of the
project.
A. Performance Bond. Pursuant to Chapter 39.08 RCW, the Contractor shall
provide the City a performance bond for the full contract amount to be in
effect until thirty (30) days after the date of final acceptance, or until receipt
of all necessary releases from the State Department 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. Retainage. The City shall hold back a retainage in the amount of five
percent (5%) of any and all payments made to contractor for a period of
thirty (30) days after the date of final acceptance, or until receipt of all
necessary releases from 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 Work. 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
Contractor 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 Contract
price specified above. The City further reserves its right to deduct the cost
to complete the Contract work, including any Additional Costs, from any
and all amounts due or to become due the Contractor.
D. Final Payment: Waiver of Claims. THE MAKING OF FINAL PAYMENT
(EXCLUDING WITHHELD RETAINAGE) SHALL PRECLUDE ALL
CLAIMS, EXCEPT THOSE PREVIOUSLY AND PROPERLY MADE
AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE
TIME REQUEST FOR FINAL PAYMENT IS MADE.
4. INDEPENDENT CONTRACTOR. Contractor is and shall be at all times acting
as an independent contractor and not as an employee of the City. The Contractor 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
Contractor, officer, agents, employees and sub-contractors. The Contractor 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-contractors.
5. TERMINATION. The City may terminate this agreement for good cause. “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 sub-
contractors or for material or labor.
D. The Contractor’s persistent disregard of federal, state or local laws, rules or
regulations.
E. The Contractor’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. PREVAILING WAGES. Contractor 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 provisions. Contractor will be required to pay Kitsap County Prevailing Wage Rates current
on the bid opening date. The Kitsap County rates are available at the Department of Labor and
Industries website.
7. CHANGES. The City may issue a written work change directive 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 City’s project manager within two (2) business days of the date the 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 a written work change directive or change
order from the City. If the Contractor fails 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 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 below:
A. Procedure and Protest by the Contractor. If the Contractor disagrees with
anything required by a work change directive or change order, including
any direction, instruction, interpretation, or determination by the City, the
Contractor 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 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.
e. An analysis of the progress schedule showing the schedule
change or disruption if the Contractor is asserting a schedule
change or disruption.
The Contractor 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 Contractor’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,
the City will adjust payment for work or time by an equitable
adjustment. 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. Contractor’s Acceptance of Changes. 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 Waiver. By not protesting as this section
provides, the Contractor also waives any additional entitlement and accepts
from the City any written 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 order (including
directions, instructions, interpretations, and determination).
F. Liens. In the event that there are any liens on file against the City of
Bremerton, the City of Bremerton shall be entitled to withhold final or
progress payments to the extent deemed necessary by the City of Bremerton
to properly protect the outstanding lien claimants until proper releases have
been filed with the City Clerk
8. CLAIMS. 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 extens ion 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; 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 Contractor knew, or should have known, of the facts giving rise to the claim. At a minimum,
a Contractor’s written 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 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.
Contractor 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.
9. WARRANTY. The Contractor shall correct all defects in workmanship and
materials within one year from the date of the City’s acceptance of the Contract work. When
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. If
the Contractor does not accomplish the corrections within a reasonable time, the City may
complete the corrections and the Contractor shall pay all costs incurred by the City in order to
accomplish the correction.
10. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its
officer, 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, except for injuries and damages caused by the City’s sole
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 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 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 THIS
INDEMNIFICATION CONSTITUTES THE CONTRACTOR’S WAIVER OF IMMUNITY
UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSE 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.
11. INSURANCE. The Contractor shall procure and maintain for the duration of this
agreement insurance of the types and in the amounts described below against claims for injuries
to persons or damage to property which may arise from or in connection with the performance of
the work by the Contractor, its agents, representative, employees, sub-consultants or sub-
contractors.
Before beginning work on the project described in this agreement, the Contractor 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 general 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;
explosion, collapse and underground (XCU); and
C. Excess Liability insurance with limits not less than $1,000,000 per
occurrence and aggregate; and
D. 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 Contractor.
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 stating that coverage shall apply
separately to each insured against whom claim is made or suit is brought, except with res pects to
the limits of the insurer’s liability.
The Consultant'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 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 6th Street,
Suite 100, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive
change of any insurance policy set out herein, and failure to do so shall be construed to be a breach
of this Agreement.
The City reserves the right to receive a certified copy of all the required insurance policies.
In the event that the Contractor employs other contractors (sub-contractors) as part of the work
covered by this Agreement, it shall be the Contractor’s responsibility to require and confirm that
each sub-contractor meets the minimum insurance requirements specified above. The Contractor
shall, upon demand of the City, deliver to the City copies of such policy or policies of insurance
and the receipts for payment of premiums thereon.
12. MISCELLANEOUS.
A. Equal Employment Opportunity Statement. In the hiring of employees for
the performance of work under this Agreement, the Contractor, its subcontractors, or any person
acting on behalf of Contractor shall not discriminate in any employment practice on the basis of
age (40+), sex, race, creed, color, national origin, sexual orientation/gender identity, marital status,
military status, or the presence of any physical, mental or sensory disability.
B. 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.
C. Compliance with Laws. Contractor shall comply with all federal, state and
local laws, rules and regulations throughout every aspect in the performance of this agreement.
D. Work Performed at Contractor’s Risk. Contractor 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 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.
E. Nonwaiver of Breach. The failure of the City to insist upon strict
performance of any of the terms and rights contained herein, or to exercise any option herein
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
F. 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.
G. Attorney’s Fees. To the extent not inconsistent with RCW 39.04.240, 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 10 of this agreement.
H. 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 mail, and shall be deemed
sufficiently given if sent to the addressee at the address stated on this agreement.
I. Assignment. Any assignment of this agreement by the Contractor without
the written consent of the City shall be void.
J. 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.
K. 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.
L. 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.
M. Mutually Bound. Contractor and Subcontractor are mutually bound by the
terms of this agreement. Terms of this agreement will apply to the work of any subcontractor. The
Contractor shall assume toward the subcontractor all obligations and responsibilities the Owner,
under this agreement, assumes toward the Contractor, and the Subcontractor shall assume toward
the Contractor all obligations and responsibilities which the Contractor, under this agreement,
assumes towards the Owner.
N. Solicitation of Minority Business. Per RCW 35.22.650, Contractor agrees
that the contractor shall actively solicit the employment of minority group members. Contractor
further agrees that the contractor shall actively solicit bids for the subcontracting of goods or
services from qualified minority businesses. Contractor shall furnish evidence of the contractor's
compliance with these requirements of minority employment and solicitation. Contractor further
agrees to consider the grant of subcontracts to said minority bidders on the basis of substantially
equal proposals in the light most favorable to said minority businesses. The contractor shall be
required to submit evidence of compliance with this section as part of the bid.
IN WITNESS WHEREOF, the parties below have executed this agreement.
CONTRACTOR THE CITY OF BREMERTON
Print Name: Joshua R. Bowen Print Name: Greg Wheeler
Title: VP & Assistant Secretary Title: Mayor
DATE DATE
Notices to be sent to: Notices to be sent to:
CONTRACTOR: CITY OF BREMERTON:
345 6th Street, Suite 100
Bremerton, WA 98337
(360)
(360) (facsimile)
APPROVED AS TO FORM:
Kylie J. Finnell
Bremerton City Attorney
ATTEST:
Angela Hoover, City Clerk
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
SUBJECT: Study Session Date: August 10, 2022
Public Works Agreement with Nova
Contracting, Inc. for the Well 9R Site
Development Project
COUNCIL MEETING Date: August 17, 2022
Department: PW&U - Engineering
Presenter: Bill Davis
Phone: (360) 473-2312
SUMMARY: The work includes all labor, materials, equipment and supplies necessary to develop the
site at 318 NW Firway Lane to drill a new well. The former well at the site was taken out of service in
2010. The work includes erosion control, tree removal, building demolition, site grading, gravel pad
construction, wall construction and other activity to provide a stable, flat work area for the future well
drilling project.
A Request for Proposals was sent to all Contractors listed on the MRSC Small Works Roster under
the category Earthwork/Grading. Four (4) cost proposals were received. The proposals were
reviewed on August 1, 2022. Nova Contracting, Inc. submitted the lowest cost proposal in the amount
of $234,234 (which includes sales tax).
ATTACHMENTS:
1) Public Works Agreement; 2) Vicinity Map; 3) Bid Tabulation
FISCAL IMPACTS (Include Budgeted Amount): The project is included in the 2022 Water CIP.
STUDY SESSION AGENDA: ☒ Limited Presentation ☐ Full Presentation
STUDY SESSION ACTION: ☐ Consent Agenda ☐ General Business ☐ Public Hearing
RECOMMENDED MOTION: Move to award the Public Works Agreement with Nova Contracting, Inc.
for the Well 9R Site Development Project in the amount of $234,234.00; and authorize the Mayor to
finalize and execute the agreement with substantially the same terms and conditions as presented.
COUNCIL ACTION: Approve Deny Table Continue No Action
Form Updated 01/02/2018
A3
PUBLIC WORKS AGREEMENT
THIS AGREEMENT is entered into between the City of Bremerton, a Washington
Municipal Corporation (“City”), and NOVA Contracting, Inc. (“Contractor”), whose mailing
address is 6526 110th Ave SW Olympia, WA 98512.
The parties agree as follows:
1. CONTRACTOR SERVICES. The Contractor shall perform the following
services for the City described in the Bid Documents titled: Well 9R Site Development.
2. TIME OF COMPLETION. Contractor shall complete the work within 40
calendar days from the date of issuance of the City’s Notice to Proceed.
3. COMPENSATION. The City shall pay the Contractor the total amount of
$234,234, including 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 of the work described in the invoice that has been completed by the
Contractor and approved by the City. The City payment shall not constitute a waiver of the
City’s right to final inspection and acceptance of the project.
A. Performance Bond. Pursuant to Chapter 39.08 RCW, the Contractor shall
provide the City a performance bond for the full contract amount to be in
effect until thirty (30) days after the date of final acceptance, or until
receipt of all necessary releases from the State Department 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. Retainage. The City shall hold back a retainage in the amount of five
percent (5%) of any and all payments made to contractor for a period of
thirty (30) days after the date of final acceptance, or until receipt of all
necessary releases from 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 Work. 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
Contractor 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
Contract price specified above. The City further reserves its right to
deduct the cost to complete the Contract work, including any Additional
Costs, from any and all amounts due or to become due the Contractor.
D. Final Payment: Waiver of Claims. THE MAKING OF FINAL
PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL
PRECLUDE ALL CLAIMS, EXCEPT THOSE PREVIOUSLY AND
PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS
UNSETTLED AT THE TIME REQUEST FOR FINAL PAYMENT IS
MADE.
4. INDEPENDENT CONTRACTOR. Contractor is and shall be at all times
acting as an independent contractor and not as an employee of the City. The Contractor 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 Contractor, officer, agents, employees and sub-contractors. The Contractor
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-
contractors.
5. TERMINATION. The City may terminate this agreement for good cause.
“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 sub-
contractors or for material or labor.
D. The Contractor’s persistent disregard of federal, state or local laws, rules
or regulations.
E. The Contractor’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. PREVAILING WAGES. Contractor 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
provisions. Contractor will be required to pay Kitsap County Prevailing Wage Rates current on
the bid opening date. The Kitsap County rates are available at the Department of Labor and
Industries website.
7. CHANGES. The City may issue a written work change directive 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 City’s project manager within two (2) business days of the date the 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 a written work change
directive or change order from the City. If the Contractor fails 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 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 below:
A. Procedure and Protest by the Contractor. If the Contractor disagrees with
anything required by a work change directive or change order, including
any direction, instruction, interpretation, or determination by the City, the
Contractor 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 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.
e. An analysis of the progress schedule showing the schedule
change or disruption if the Contractor is asserting a
schedule change or disruption.
The Contractor 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 Contractor’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,
the City will adjust payment for work or time by an equitable
adjustment. 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. Contractor’s Acceptance of Changes. 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 Waiver. By not protesting as this section
provides, the Contractor also waives any additional entitlement and
accepts from the City any written 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 order (including
directions, instructions, interpretations, and determination).
F. Liens. In the event that there are any liens on file against the City of
Bremerton, the City of Bremerton shall be entitled to withhold final or
progress payments to the extent deemed necessary by the City of
Bremerton to properly protect the outstanding lien claimants until proper
releases have been filed with the City Clerk
8. CLAIMS. 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 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; 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 Contractor knew, or should have known, of the facts giving rise to the claim. At a
minimum, a Contractor’s written 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 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.
Contractor 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.
9. WARRANTY. The Contractor shall correct all defects in workmanship and
materials within one year from the date of the City’s acceptance of the Contract work. When
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. If the Contractor does not accomplish the corrections within a reasonable time, the City
may complete the corrections and the Contractor shall pay all costs incurred by the City in order
to accomplish the correction.
10. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its
officer, 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, except for injuries and damages caused by the City’s
sole 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 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 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 THIS
INDEMNIFICATION CONSTITUTES THE CONTRACTOR’S WAIVER OF IMMUNITY
UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSE 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.
11. INSURANCE. The Contractor 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 Contractor, its agents,
representatives, employees or sub-contractors.
Before beginning the work on the project described in this agreement, the Contractor
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 from property damage; explosion,
collapse and underground (XCU) if applicable; and
C. 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
Contractor.
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 stating that 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 Consultant'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 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 6th
Street, Suite 100, Bremerton, WA 98337 within two days of the cancellation, suspension or
substantive change of any insurance policy set out herein, and failure to do so shall be construed
to be a breach of this Agreement.
The City reserves the right to receive a certified copy of all the required insurance
policies. In the event that the Contractor employs other contractors (sub-contractors) as part of
the work covered by this Agreement, it shall be the Contractor’s responsibility to require and
confirm that each sub-contractor meets the minimum insurance requirements specified above.
The Contractor shall, upon demand of the City, deliver to the City copies of such policy or
policies of insurance and the receipts for payment of premiums thereon.
11. INSURANCE. The Contractor shall procure and maintain for the duration of this
agreement insurance of the types and in the amounts described below against claims for injuries
to persons or damage to property which may arise from or in connection with the performance of
the work by the Contractor, its agents, representative, employees, sub-consultants or sub-
contractors.
Before beginning work on the project described in this agreement, the Contractor 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 general 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;
explosion, collapse and underground (XCU); and
C. Excess Liability insurance with limits not less than $1,000,000 per
occurrence and aggregate; and
D. 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 Contractor.
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 stating that 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 Consultant'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 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 6th
Street, Suite 100, Bremerton, WA 98337 within two days of the cancellation, suspension or
substantive change of any insurance policy set out herein, and failure to do so shall be construed
to be a breach of this Agreement.
The City reserves the right to receive a certified copy of all the required insurance
policies. In the event that the Contractor employs other contractors (sub-contractors) as part of
the work covered by this Agreement, it shall be the Contractor’s responsibility to require and
confirm that each sub-contractor meets the minimum insurance requirements specified above.
The Contractor shall, upon demand of the City, deliver to the City copies of such policy or
policies of insurance and the receipts for payment of premiums thereon.
12. MISCELLANEOUS.
A. Equal Employment Opportunity Statement. In the hiring of employees for
the performance of work under this Agreement, the Contractor, its subcontractors, or any person
acting on behalf of Contractor shall not discriminate in any employment practice on the basis of
age (40+), sex, race, creed, color, national origin, sexual orientation/gender identity, marital
status, military status, or the presence of any physical, mental or sensory disability.
B. 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.
C. Compliance with Laws. Contractor shall comply with all federal, state
and local laws, rules and regulations throughout every aspect in the performance of this
agreement.
D. Work Performed at Contractor’s Risk. Contractor 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 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.
E. Nonwaiver of Breach. The failure of the City to insist upon strict
performance of any of the terms and rights contained herein, or to exercise any option herein
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
F. 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.
G. Attorney’s Fees. To the extent not inconsistent with RCW 39.04.240, 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 10 of this agreement.
H. 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 mail, and shall be
deemed sufficiently given if sent to the addressee at the address stated on this agreement.
I. Assignment. Any assignment of this agreement by the Contractor without
the written consent of the City shall be void.
J. 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.
K. 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.
L. 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.
M. Mutually Bound. Contractor and Subcontractor are mutually bound by
the terms of this agreement. Terms of this agreement will apply to the work of any subcontractor.
The Contractor shall assume toward the subcontractor all obligations and responsibilities the
Owner, under this agreement, assumes toward the Contractor, and the Subcontractor shall
assume toward the Contractor all obligations and responsibilities which the Contractor, under
this agreement, assumes towards the Owner.
N. Solicitation of Minority Business. Per RCW 35.22.650, Contractor agrees
that the contractor shall actively solicit the employment of minority group members. Contractor
further agrees that the contractor shall actively solicit bids for the subcontracting of goods or
services from qualified minority businesses. Contractor shall furnish evidence of the contractor's
compliance with these requirements of minority employment and solicitation. Contractor further
agrees to consider the grant of subcontracts to said minority bidders on the basis of substantially
equal proposals in the light most favorable to said minority businesses. The contractor shall be
required to submit evidence of compliance with this section as part of the bid.
IN WITNESS WHEREOF, the parties below have executed this agreement.
NOVA CONTRACTING, INC. THE CITY OF BREMERTON
Print Name: Print Name: Greg Wheeler
Title: Title: Mayor
DATE DATE
Notices to be sent to: Notices to be sent to:
NOVA CONTRACTING, INC. CITY OF BREMERTON:
Attn: Jordan Opdahl Attn: Angela Hoover
6526 110th Ave SW 345 6th Street, Suite 100
Olympia, WA 98512 Bremerton, WA 98337
(360) 754-2600 (360) 473-5323
APPROVED AS TO FORM:
Kylie J. Finnell
Bremerton City Attorney
ATTEST:
Angela Hoover, City Clerk
R:\Legal\Legal\Forms\FORMS ON COBWEB\Public Works Agreement (short form) Rev. 05 2022.doc
WELL 9R – VICINITY MAP
BID TITLE:
SECOND LOW BIDDER - Northwest Cascade, Inc. $ 270,237.24
THIRD LOW BIDDER - Pape & Sons Construction, Inc. $ 331,422.00
DATE
OPENED:
RECORDED
BY:
$ 282,000.00 ENGINEER ESTIMATE (INC SALES TAX)
APPARENT LOW BIDDER - NOVA Contracting, Inc. $ 234,234.00
SUMMARY
Pape & Sons Construction, Inc.√ $ 303,500.00 $ 27,922.00 $ 331,422.00
NOVA Contracting, Inc.√ $ 214,500.00 $ 19,734.00 $ 234,234.00
Vet Industrial √ $ 332,800.00 $ 30,617.60 $ 363,417.60
Northwest Cascade, Inc.√ $ 247,470.00 $ 22,767.24 $ 270,237.24
CITY OF BREMERTON
BID TABULATION
BOND BASE BID + CONTINGENCY SALES TAX TOTALNAME OF BIDDER
OPENED
BY:
8/1/2022 TIME
OPENED:
Well 9R Site Development
2:00 PM Noreen Bolo
Bill Davis/ Noreen Bolo