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Osmose Utilities Services, Inc.
GENERAL SERVICES AGREEMENT
Osmose Utilities Services, Inc.
GENERAL SERVICES AGREEMENT
This GENERAL SERVICES AGREEMENT (the "Agreement "), dated as of October 8, 2010 (the
"Effective Date "), is entered into by and between OSMOSE UTILITIES SERVICES, INC., a
Delaware corporation with its principal place of business at 215 Greencastle Road, Tyrone, Georgia
30290 ( "CONTRACTOR "), and the CITY OF YAKIMA, WASHINGTON, a Washington
Municipal Corporation located at 129 North Second Street, Yakima, WA 98901 ( "OWNER "), jointly
referred to as "the Parties," and individually "the Party."
In consideration of the mutual promises and conditions contained in this Agreement, CONTRACTOR and
OWNER mutually agree as follows:
1.0 Contract Documents: The term "Contract Documents" shall mean this Agreement, CONTRACTOR's
proposal, CONTRACTOR's Exhibits A and B (whenever applicable) or OWNER's specification, any
associated amendments and any other separate document mutually agreed to and executed by the Parties
that are now or hereafter agreed to and signed by the Parties and that may contain, without limitation, a
specific description of the statement of work or scope of the project, pricing assumptions, source materials
and the deliverables. The Parties agree that the Contract Documents shall be incorporated as part of this
Agreement. In the event of inconsistent or contradictory provisions among any of the Contract
Documents, inclusive of OWNER's purchase order, the provisions of this Agreement shall take
precedence.
2.0 Supplemental Terms and Conditions: In the event that OWNER desires services from the
CONTRACTOR that fall outside the scope of this Agreement, CONTRACTOR will submit Supplemental
Terms and Conditions for such services. The Terms and Conditions of this Agreement shall be overridden
by any Supplemental Terms and Conditions that are submitted by CONTRACTOR and approved in
writing by both Parties.
3.0 Work: CONTRACTOR shall furnish all supervision, labor, tools, equipment and materials necessary or
required to perform the work described in Schedule 1 (the "Work ") and in accordance with the
specifications set forth in the Contract Documents. Qualification of CONTRACTOR's personnel shall be
as set forth in the Contract Documents.
4.0 Source Materials: Whenever applicable and requested by CONTRACTOR, OWNER, without charge,
shall furnish or make available for examination or use by CONTRACTOR any data which OWNER may
have available including locations of the Work sites and other data pertinent to the Work.
5.0 CONTRACTOR Reports: CONTRACTOR shall record all categories of Work on accepted report
sheets or electronic media in accordance with the Contract Documents or as supplied by OWNER. A
copy of this report shall be furnished to OWNER in a timely fashion as mutually agreed.
6.0 CONTRACTOR Fees: OWNER agrees to pay CONTRACTOR, and CONTRACTOR agrees to accept
as full compensation for the Work performed and materials used, the fees set forth in or otherwise
calculated in accordance with the rates set forth in Schedule I. OWNER shall be responsible for all
applicable sales taxes, unless it provides to CONTRACTOR a valid exemption certificate or other
documentation satisfactory to CONTRACTOR reflecting a sales tax exemption. If the Work is subject to
a gross receipts or other similar tax, said amount shall be added to the pricing. The total cost calculated in
accord with CONTRACTOR's rate schedule for the specific work to be performed, including applicable
sales tax, shall not exceed One Thousand One Hundred Thirty Six and 10/100 Dollars ($1,136.10),
without the prior express written approval of OWNER.
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7.0 CONTRACTOR's Payment Terms: The invoicing and payment terms shall be those set forth in the
Contract Documents. In the event said terms are not set forth in the Contract Documents the below terms
shall apply. CONTRACTOR shall prepare and furnish OWNER with a detailed invoice of the number of
billable items (as defined in the Contract Documents) for the covered period and the amount due.
OWNER shall pay CONTRACTOR the amount due upon receipt of the invoice. A service charge of the
lesser of one and one -half percent (11/2%) per month or the highest amount legally permitted will be added
to all accounts balances not paid within thirty (30) days. Notwithstanding any language to the contrary,
this service charge shall be governed by the laws of the State of Delaware.
8.0 Commencement of Work: CONTRACTOR shall commence the Work within thirty (30) days after
receiving written notice from OWNER.
9.0 Termination: Either Party may terminate this Agreement upon thirty (30) days written notice served
upon the other Party by registered mail. Upon expiration of such thirty (30) day period, all Work under
this Agreement shall cease. Upon termination, CONTRACTOR shall issue a final invoice and OWNER
shall pay CONTRACTOR for all Work performed through the end of the thirty (30) day notice period.
10.0 Independent Contractor: CONTRACTOR shall at all times be an Independent Contractor for all
purposes under this Agreement, including without limitation in connection with the performance of labor
and services under this Agreement.
11.0 Compliance with Laws: CONTRACTOR shall promptly pay all wages due to its employees, shall
obtain all licenses and permits required by law and shall otherwise comply with all ordinances, laws,
orders, rules, directives and regulations made by any governmental authority or regulatory body pertaining
to the Work.
12.0 CONTRACTOR's Insurance: Notwithstanding any language to the contrary, any insurance coverage
provided by CONTRACTOR shall not cover OWNER for any negligent acts or omissions of OWNER, its
employees or agents.
1. At all times during performance of the Services, CONTRACTOR shall secure and maintain in effect
insurance to protect the OWNER from and against all claims, damages, losses, and expenses arising out of
or resulting from the performance of this Contract. _CONTRACTOR shall provide and maintain in force
insurance in limits no less than that stated below, as applicable. The OWNER reserves the right to require
higher limits should it deem it necessary in the best interest of the public.
2. Commercial General Liability Insurance. Before this Contract is fully executed by the parties,
CONTRACTOR shall provide the City with a certificate of insurance as proof of commercial liability
insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million
Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and
Two Million Dollars ($2,000,000.00) general aggregate. The certificate shall clearly state who the
provider is, the coverage amount, the policy number, and when the policy and provisions provided are in
effect. Said policy shall be in effect for the duration of this Contract. The policy shall name the OWNER,
its elected officials, officers, agents, employees, and volunteers as additional insureds, and shall contain a
clause that the insurer will not cancel or change the insurance without first giving the City thirty (30)
calendar days prior written notice (any language in the clause to the effect of "but failure to mail such
notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and
initialed by the insurance agent). The insurance shall be with an insurance company or companies rated
A -VTI or higher in Best's Guide and admitted in the State of Washington.
3 Commercial Automobile Liability Insurance.
a. If OWNER owns any vehicles, before this Contract is fully executed by the parties, OWNER shall
provide the City with a certificate of insurance as proof of commercial automobile liability insurance and
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GENERAL SERVICES AGREEMENT
commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars
($2,000,000.00) per occurrence combined single limit bodily injury and property damage. Automobile
liability will apply to "Any Auto" and be shown on the certificate.
b. If OWNER does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be
required and may added to the commercial liability coverage at the same limits as required in that section
of this Contract, which is Section 12.2 entitled "Commercial Liability Insurance ".
c. Under either situation described above in Section 3.a and Section 3.b, the required certificate of
insurance shall clearly state who the provider is, the coverage amount, the policy number, and when the
policy and provisions provided are in effect. Said policy shall be in effect for the duration of this
Contract. The policy shall name the City, its elected officials, officers, agents, employees, and volunteers
as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance
without first giving the City thirty (30) calendar days prior written notice (any language in the clause to
the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the
company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an
insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of
Washington.
13.0 Indemnification: CONTRACTOR agrees to protect, defend, indemnify, and hold harmless the
OWNER, its elected officials, officers, employees, agents, and volunteers from any and all
claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all
judgments, awards, costs and expenses (including reasonable attorneys' fees and disbursements)
resulting from death or bodily injury to any person or damage or destruction to a third party or
third parties to the extent caused by any negligent act and/or omission of CONTRACTOR, its
officers, employees, agents, volunteers and /or subcontractors, arising out of the performance of
this Contract.
Nothing contained in this Section or this Contract shall be construed to create a liability or a right
of indemnification in any third party.
14.0 Warranty: CONTRACTOR shall perform the Work in a safe, efficient, good, and workmanlike manner.
CONTRACTOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. ALL ACTIONS AGAINST CONTRACTOR BY OWNER IN
WARRANTY, TORT, CONTRACT OR OTHERWISE MUST BE COMMENCED WITHIN ONE (1)
YEAR OF THE DATE OF ACCRUAL OF SUCH ACTION. IN NO EVENT SHALL CONTRACTOR
BE RESPONSIBLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY
OR PUNITIVE DAMAGES, UNLESS CAUSED BY THE WILLFUL MISCONDUCT OF
CONTRACTOR. CONTRACTOR MAKES NO WARRANTY AS TO THE LONGEVITY OR
USEFUL LIFE OF WOOD POLES INSPECTED AND /OR TREATED BY CONTRACTOR.
FURTHERMORE, THE TOTAL CUMULATIVE LIABILITY OF CONTRACTOR AND ITS
SUBCONTRACTORS AND SUPPLIERS ARISING FROM THE PERFORMANCE OR A FAILURE
TO PERFORM WORK PURSUANT TO THIS AGREEMENT, WHETHER IN TORT, CONTRACT,
STRICT LIABILITY, OR OTHERWISE, INCLUDING ALL EXPENSES INCURRED OR PAYABLE
BY CONTRACTOR IN SATISFACTION OF ITS INDEMNIFICATION OBLIGATIONS UNDER
THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL FEES PAID TO CONTRACTOR
PURSUANT TO THIS AGREEMENT This Paragraph shall survive termination of this Agreement for
any reason.
15.0 Confidentiality: The terms of this Agreement shall remain confidential and shall not be disclosed by
either Party to any person without the consent of the other Party or as may required by law or order of a
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court of competent jurisdiction. The Parties acknowledge that, in the course of this Agreement, they may
have access to and /or be in possession of Confidential Information of the other Party. "Confidential
Information" shall mean information regarded by that Party as confidential, including without limitation
information relating to its past, present or future research, development, sales and marketing, financial or
business affairs and any proprietary products, materials or methodologies. Each Party shall hold in strict
confidence, in the same manner as it holds its own Confidential Information of like kind, all Confidential
Information of the other Party which may be disclosed to it or to which it may have access. Access to
Confidential Information shall be restricted to those of each Party's personnel who have a need to know
such information and its use shall be limited to the performance of this Agreement. The foregoing shall
not prohibit or limit either Party's use of information of the other Party (including without limitation
ideas, concepts, know -how, techniques and methodologies) which (i) was previously known to it, (ii) was
or is independently developed by it, (iii) was or is acquired by it from a third Party having no obligation of
confidentiality regarding the information, (iv) is, or becomes, publicly available through no breach by it of
this Agreement, or (v) is disclosed pursuant to law or the order, requirement or request of a court or
government authority. This paragraph shall survive termination of this Agreement for any reason.
16.0 Ownership: The Parties agree and acknowledge that CONTRACTOR may use proprietary materials of
CONTRACTOR or third Parties in the preparation of the Work ( "Proprietary Items ") and that OWNER
shall not obtain any ownership rights in the Proprietary Items. All Work conceived or developed by
CONTRACTOR in connection with Osmose's provision of services under this Agreement shall belong to
CONTRACTOR. OWNER shall execute all documents that may be reasonably requested by
CONTRACTOR in order to vest in CONTRACTOR all right, title and interest in the Work.
Notwithstanding the foregoing, any Confidential Information of OWNER that is used by CONTRACTOR
in connection with the Work shall remain Confidential Information of OWNER. Subject to the terms of
this Agreement, CONTRACTOR shall grant OWNER a perpetual, royalty free license to use the Work
provided OWNER agrees to treat all such materials as confidential information in the same manner that
OWNER treats its own confidential material, but in no event less than a reasonable degree of care. This
paragraph shall survive the termination of this Agreement for any reason.
17.0 Notice of Claim: In the event OWNER has notice of (i) any personal injury or death or (ii) property
damage in excess of $5,000.00, OWNER agrees to give written notice to CONTRACTOR within ten (10)
days after OWNER first discovers or receives notice of such an occurrence. For pole inspection,
treatment, and /or restoration services; in the event OWNER has notice of (i) any personal injury or death
or (ii) property damage in excess of $5,000.00 as the result of the failure, falling or breakage of one or
more of OWNER's wood utility pole(s) inspected or otherwise worked on by CONTRACTOR, OWNER
agrees to take possession of and store subject utility pole(s) in a location protected from the weather and
provide CONTRACTOR reasonable opportunity to inspect said pole(s). Notwithstanding any language to
the contrary in this Agreement, in the event OWNER fails to comply with the foregoing provisions of this
paragraph 17.0, OWNER agrees to defend, indemnify and hold harmless CONTRACTOR from and
against any and all claims for damages as a result of said personal injury, death or property damage.
OWNER's defense obligations shall include all costs of defense, including reasonable attorneys' fees.
18.0 Notices: All notices and other communications required or permitted under this Agreement shall be in
writing and shall be deemed to have been duly given: (i) when delivered by hand or confirmed facsimile
transmission; (ii) one day after delivery by receipted overnight delivery; or (iii) four days after being
mailed by certified or registered mail, return receipt requested, with postage prepaid to the appropriate
address set forth in this Agreement or to such other person or address as either Party shall furnish to the
other Party in writing in accordance with this paragraph.
19.0 Force Majeure: Except as specifically provided in this Agreement, neither Party shall be liable for any
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delays or other nonperformance resulting from circumstances or causes beyond its reasonable control and
anticipation, including fire or other casualty, act of God, strike or labor dispute, war or other violence, acts
of third Parties not within such Party's reasonable control and anticipation, or any law, order or
requirement of any governmental agency or authority; provided however, that the Party whose
nonperformance is excused under this paragraph shall take commercially reasonable steps to circumvent
such events of force majeure and shall resume performance immediately upon the cessation of the
condition of force majeure which prevented such performance.
20.0 Severability: If any term or provision of this Agreement is held illegal or unenforceable by a court of
competent jurisdiction, all other terms of this Agreement shall remain in full force and effect, and the
illegal or unenforceable provision shall be deemed struck. In the event that the stricken provision
materially affects the rights, obligations or duties of either Party, OWNER and CONTRACTOR shall
substitute a provision by mutual agreement that preserves the original intent of the Parties as closely as
possible under applicable law.
21.0 Jurisdiction and Venue: The Parties hereby irrevocably submit to the jurisdiction of the United States
District Court for the Eastern District of Washington or the Yakima County Superior Court in Yakima,
Washington any action or proceeding arising out of or relating to this Agreement. The law of the state of
Washington shall apply to any action arising from this agreement. This provision shall survive the
termination of this Agreement for any reason.
22.0 Miscellaneous: This Agreement constitutes the entire agreement between the Parties relative to the
subject matter contained in this Agreement. None of the terms of this Agreement shall be changed,
waived, superseded or supplemented, except in a written document signed by the Parties hereto. Each
Party acknowledges that it has participated in the negotiation and preparation of this Agreement and has
had the opportunity to have its counsel review this Agreement. Therefore, neither Party shall be deemed
to have drafted this Agreement and the customary rule of construction resolving ambiguities in the
language against the drafting Party shall not apply.
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Osmose Utilities Services, Inc.
GENERAL SERVICES AGREEMENT
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date set forth at the beginning of this Agreement.
OSMOS " T CITIES SERVICES, INC. ATTEST
(C II T CTO' )
_ Aryl" c2L _i. 4
Signat / � / Signature
David R. Hagley Kim Heuchert
Print Name Print Name
Vice President- Contracts Contract Administrator
Title Title
CITY OF YAKIMA, WASHINGTON ATTEST
(OWNER)
'∎ P a' /
Signature - Signature ... L MA � ` ,)
R.A. Zais, Jr. Debbie Kloster
Print Name Print Name i � ; ■*". :
City Manager City Clerk ' ‘ hASHIN
Title Title „„",,---
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