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;
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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.
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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
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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
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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.
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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
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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
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Date Signed
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Signed
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