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HomeMy WebLinkAboutApple King, LLC - Electrical Improvements to the Gleed Booster PumpAGREEMENT BETWEEN THE CITY OF YAKIMA AND APPLE KING, LLC FOR THE DESIGN AND CONSTRUCTION OF ELECTRICAL IMPROVEMENTS TO THE CITY OF YAKIMA'S GLEED BOOSTER PUMP STATION THIS AGREEMENT is entered into between the City of Yakima (hereinafter the "City"), whose address is 129 North 2nd Street, Yakima, Washington 98901, and, Apple King, L.L.C., a Washington limited liability company (hereinafter "Apple King"), for purposes of the design and construction of electrical improvements to the City of Yakima pump station. WHEREAS, the City is the owner of the Gleed Booster pump station, located at North Gleed Road and Mapleway, Gleed, Yakima County, Washington; and WHEREAS, the pump station provides domestic water to Apple King and the Gleed area; and WHEREAS, Apple King wishes to enhance the fire suppression and other services to its property and the greater Gleed area by adding a variable frequency drive (VFD) the 125 horse power motor which will improve reliability of increased fire flow, at its own expense with no cost to the City; and WHEREAS, the City would not make electrical improvements at the pump station if Apple King did not do so, does not have a staff electrician who can do the work, and the electrical improvements will create a cost savings to the City; and WHEREAS, the City is willing to accept the financial and other resources offered by Apple King for the design and construction of the improvements to the pump station as outlined herein; NOW, THEREFORE, in consideration of the covenants and agreements contained herein and performed by the parties hereto, it is hereby agreed as follows: 1. Purpose. The purpose of this Agreement is to define the responsibilities of the City and Apple King with regards to the electrical improvements to the City of Yakima's Gleed Booster pump station (hereinafter sometimes referred to as the "Project") and to provide for effective cooperation in improving reliable fire flow for the benefit of the City and its residents, and Apple King and the Gleed area. 2. Obligations of the Parties. The City shall perform the following obligations in regard to the pump station: A. The City shall assist in planning for electrical improvements to the pump station; B. Upon completion of the electrical improvements and acceptance by the City, the City shall maintain and operate the electrical improvements; C. The City shall take other steps, as necessary, to ensure continued use of the pump station during and after construction. Apple King shall perform the following obligations in regard to the electrical improvements to the pump station: A. Apple King shall be responsible for all costs associated with the necessary personnel, time, equipment, supplies and anything else associated with the project to make electrical improvements to the pump station, as specifically outlined in Exhibit "1" attached hereto and fully incorporated herein; Page 1 of 7 B. Apple King shall pay all electricians and others working on the project the prevailing wage or higher; C. Apple King shall coordinate with the City of Yakima to create a timeline for the work, agree upon dates and hours during which work may occur, and coordinate all other activities associated with this Agreement; D. Apple King shall confer with the City as necessary in regard to any outstanding matters related to the electrical upgrades; E. Apple King shall provide "as -built" plans as well as all warranty and product information associated with the electrical improvements made to the pump station; F. Apple King's estimated cost for the project is attached hereto as Exhibit "2" and fully incorporated herein, although the City shall not pay or expend any money towards the improvements—the estimated cost is provided to show the value of the improvements only; G. After improvements are completed, Apple King shall surrender any claim of ownership of the improvements. 3. Term. The term of this Agreement shall commence upon execution hereof and shall remain in effect until the Project is complete, unless the Agreement is terminated earlier by either party under Section 16 of this Agreement. Apple King shall proceed with their obligations in a timely and diligent manner but shall not have any responsibility for delays caused by others beyond the control of Apple King or that were not reasonably foreseeable. 4. Administration. This Agreement shall be administered by the City's Water/Irrigation Division. The contact person for the City shall be Dave Brown, Water/Irrigation Manager. 5. Independent Contractor. Apple King and the City understand and expressly agree that Apple King is an independent contractor in the performance of each and every part of this Agreement. Additionally, and as an independent contractor, Apple King and its employees shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and/or retirement. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between Apple King and/or any officer, employee or agent of Apple King and the City. 6. No Third Party Rights. This Agreement is entered into for the sole benefit of the parties. It shall confer no benefits or rights, direct or indirect, on any third parties. No person or entity other than the City and Apple King may rely upon or enforce any provision of this Agreement. 7. Indemnification and Hold Harmless. A. Apple King agrees to defend, indemnify, and hold harmless the City, its elected and appointed officials, agents, officers, employees, agents, and volunteers (hereinafter "parties protected") from (1) claims, demands, liens, lawsuits, administrative and other proceedings (including reasonable costs and attorney's fees), and (2) judgments, awards, losses, liabilities, damages, penalties, fines, costs, and expenses of any kind claimed by third parties arising out of, or related to any death, injury, damage or destruction to any person or any property to the extent caused by any negligent act, action, default, error or omission or willful misconduct arising out of Apple King's performance under this Agreement. In the event that any lien is placed upon the City's property or any of the City's officers, employees or agents as a result of the negligence or willful misconduct of Apple King, Apple King shall at once cause the same to be dissolved and discharged by giving bond or otherwise. Page 2 of 7 B. City agrees to indemnify, defend, and hold Apple King harmless from loss, cost, or expense of any kind claimed by third parties, including without limitation such loss, cost, or expense resulting from injuries to persons or damages to property, caused solely by the negligence or willful misconduct of the City, its employees, or agents in connection with the project outlined in this Agreement. The City, however, will be solely responsible for maintenance and operation of the electrical improvements and shall hold Apple King harmless from any responsibility or liability arising after the City's acceptance caused by the wrongful and/or negligent acts, or omissions of the City or any third party. C. If the negligence or willful misconduct of both Apple King and the City (or a person identified above for whom each is liable) is a cause of such third -party claim, the loss, cost, or expense shall be shared between Apple King and the City in proportion to their relative degrees of negligence or willful misconduct and the right of indemnity will apply for such proportion. D. In any and all claims by an employee of Apple King, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligations under this Agreement shall not be limited in any way by any limitation on the amount or types of damages, compensation, or benefits payable by or for Apple King or a subcontractor under workers' or workmens' compensation acts, disability benefit acts, or other employee benefit acts. Apple King specifically and expressly waives its immunity under the Industrial Insurance Act, Title 51, RCW. Such waiver has been mutually negotiated by Apple King and City. E. The provisions of this Section shall survive the termination or expiration of this Agreement. F. Nothing contained in this Section or this Agreement shall create a liability or a right of indemnification in any third party. 8. Nondiscrimination. During the performance of this Agreement, the Parties shall not discriminate in violation of any applicable federal, state and/or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, and any other classification protected under federal, state, or local law. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 9. Compliance With Law. The Parties to this Agreement shall comply with all applicable federal, state and local laws, rules and regulations in carrying out the terms and conditions of this Agreement. 10. Insurance. a., It is understood the City does not maintain liability insurance for Apple King or its employees, officers, directors, agents, volunteers, contractors or subcontractors, nor does Apple King maintain liability insurance for the City or its employees or contractors. b. At all times during performance of the services, Apple King shall secure and maintain in effect insurance to protect the City and the Apple King from and against all claims, damages, losses, and expenses arising out of or resulting from the performance of this Agreement. Apple King shall provide and maintain in force insurance in limits no less than that stated below, as applicable. The City reserves the rights to require higher limits should it deem it necessary in the best interest of Page 3 of 7 the public. If Apple King carries higher coverage limits than the limits stated below, such higher limits shall be shown on the Certificate of Insurance and Endorsements and Apple King shall be named as an additional insured for such higher limits. Commercial General Liability Insurance. Before this Agreement is fully executed by the parties, Apple King shall provide the City with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy, subject to minimum limits 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 Agreement. The policy shall name the City, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. 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. Subcontractors: If subcontractors will be used, the same terms and limits of coverage will apply and a certificate will be required per the instructions above. In lieu of a certificate, contractor may provide confirmation in writing from their insurance broker that their insurance policy does not contain a subcontract exclusion or one relating to the work of others. ii. Commercial Automobile Liability Insurance. If Apple King owns any vehicles, before this Agreement is fully executed by the parties, Apple King shall provide the City with a certificate of insurance as proof of commercial automobile liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy, subject to minimum limits 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. If Apple King does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be required and may be added to the commercial liability coverage at the same limits as required in that section of this Agreement, which is the section entitled "Commercial General Liability Insurance." Under either situation described above, 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 Agreement. The policy shall name the City, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the Page 4 of 7 City thirty (30) calendar days prior written notice. 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. Statutory workers' compensation and employer's liability insurance as required by state law shall be provided by Apple King. iii. Professional Liability Coverage. Before this Agreement is fully executed by the parties, Apple King shall provide the City with a certificate of insurance as proof of professional liability coverage with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per claim, and Two Million Dollars ($2,000,000.00) 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 Agreement. The insured shall not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide. If the policy is written on a claims made basis the coverage will continue in force for an additional two years after the completion of this AGREEMENT. iv. Failure of either or all of the additional insureds to report a claim under such insurance shall not prejudice the rights of the City, its officers, employees, agents, and representatives there under. The City and the City's elected or appointed officials, officers, principals, employees, representatives, and agents shall have no obligation for payment of premiums because of being named as additional insureds under such insurance. None of the policies issued pursuant to the requirements contained herein shall be canceled, allowed to expire, or changed in any manner that affects the rights of the City until thirty (30) days after written notice to the City of such intended cancellation, expiration or change. v. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. vi. Dispute Resolution. The City and Apple King shall meet to discuss any outstanding issues related the terms and conditions of this Agreement or the work done hereunder in order to resolve any disputes through cooperation and negotiation. vii. Integration. This Agreement contains all of the terms and conditions agreed on by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement, are deemed to exist or to bind either of the parties. viii. Modifications and Assignment. The parties may modify this Agreement but no proposed changes or modifications shall have validity or become binding on either party unless such changes or modifications are in writing and executed by both parties. This Agreement shall not be assigned to any third party unless the parties agree to assignment in writing. Page 5of7 ix. Severabilit A. If a court of competent jurisdiction holds any part, term or provision of this Agreement illegal or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held invalid. B. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. x. Termination. Either party may terminate this Agreement, without cause, upon thirty (30) days' written notice to the other party. Upon termination there shall be no claim for payment by Apple King for any of the work completed. All work completed, including materials purchased for said work, shall become the property of the City upon termination. xi. Survival. Any provision of this Agreement which imposes an obligation after expiration or termination of this Agreement shall survive the expiration or termination and shall bind the parties. xii. Notices. Unless otherwise stated herein, all notices and demands are required in written form and sent to the parties at their addresses as follows: TO: TO: CITY OF YAKIMA Cliff Moore, City Manager City of Yakima 129 North Second Street Yakima, WA 98901 David Brown, Water/Irrigation Manager 2301 Fruitvale Blvd. Yakima, WA 98902 TO: APPLE KING Mike Saunders PO Box 4080 Yakima, WA 98904 xiii. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. xiv. Inspection, Audit and Records. Apple King shall maintain books, accounts, records, documents and other records, including all electronic records, regarding its actions and responsibilities under this Agreement in accordance with generally accepted accounting practices. All such books of account and records required to be maintained by this Agreement shall be subject to inspection and audit by representatives of the City and/or of the Washington State Auditor at all reasonable times. Apple King shall provide the proper facilities for such inspection and audit. Such books of account, documents and records may be copied by a representative of the City and/or of the Washington State Auditor where necessary to conduct or document an audit. Apple King shall preserve and make available all such books of account and records for a period of six (6) years after the completion of construction of the front entrance improvements and final donation to the City. Apple King understands and agrees that records maintained pertaining to actions conducted by YVSC pursuant to this Agreement will be considered public records subject Page6of7 to disclosure under the State of Washington Public Records Act, RCW 42.56. Apple King shall cooperate with the City to assure timely production and disclosure of any records in Apple King's possession, or the possession of any of its directors, officers, members or volunteers, subject to disclosure under the Public Records Act. CITY OF YAKIMA Apple King, LLC. Cliff Moo , City Manager F'00, eg, X I CK Date Signed bl civ' CONTRACT NO RESOLUTION NO:�'r /130 leg Date Signed Page 7 of 7