HomeMy WebLinkAboutFencing and Awning - Miller Park Fencing Project Agreement AGREEMENT 22206S
Miller Park Fencing Project
THIS AGREEMENT, entered into on the date of last execution, between the City of Yakima, a Washington municipal
corporation ("City"),and Fencing and Awning, ("Contractor").
WITNESSETH: The parties, in consideration of the terms and conditions herein, do hereby covenant and agree as
follows:
1. Scope of Work
The Contractor shall perform all work and service(s)and furnish all tools, materials, labor and equipment(collectively
referred to as"Services")according to the procedure outlined in the specifications of Quote#22206S titled Miller Park
Fencing Project and the quote documents, which are all attached and incorporated herein as Exhibit A, and any
applicable construction standard(s),which are by this reference incorporated herein and made a part hereof,and shall
perform any alterations in or additions to the work provided under this Contract and every part thereof.
Work is estimated to be complete by May 15,2022. Final work schedule shall be coordinated with Project Coordinator
Ken Wilkinson, Park and Recreation Manager, (509)576-6416.
The Contractor shall provide and bear the expense of all equipment; work and labor of any sort whatsoever that may
be required for the transfer of materials and completing the work provided for in this Contract and every part thereof,
except such as are mentioned in the specifications to be furnished by the City of Yakima.
2. Compensation
The City agrees to pay the Contractor according to Exhibit B, attached hereto and incorporated herein, which Exhibit
includes the specifications and payment schedule of itemized prices as listed in the Contractor's Quote submittal at the
time and in the manner and upon the conditions provided for the Contract.
3. Agency Relationship between City and Contractor
Contractor shall, at all times, be an independent Contractor and not an agent or representative of City with regard to
performance of the Services. Contractor shall not represent that it is, or hold itself out as, an agent or representative
of City. In no event shall Contractor be authorized to enter into any agreement or undertaking for,or on behalf,of City.
4. Successors and Assigns
a. Neither the City, nor the Contractor, shall assign, transfer, or encumber any rights, duties, or interests
accruing from this Contract without the prior written consent of the other.
b. The Contractor for himself, and for his heirs, executors, administrators, successors, and assigns, does
hereby agree to the full performance of all the covenants herein contained upon the part of the Contractor.
5. Property Rights
All records or papers of any sort relating to the City and to the project will at all times be the property of the City and
shall be surrendered to the City upon demand. All information concerning the City and said project which is not
otherwise a matter of public record or required by law to be made public, is confidential,and the Contractor will not, in
whole or part, now or at any time disclose that information without the express written consent of the City.
6. Inspection and Production of Records
a. The records relating to the Services shall, at all times, be subject to inspection by and with the approval
of the City, but the making of(or failure or delay in making)such inspection or approval shall not relieve
Contractor of responsibility for performance of the Services in accordance with this Contract,
notwithstanding the City's knowledge of defective or non-complying performance, its substantiality or the
Agreement 22206S Miller Park Fencing Project Page 1 of 9
ease of its discovery. Contractor shall provide the City sufficient, safe,and proper facilities, and/or send
copies of the requested documents to the City. Contractor's records relating to the Services will be
provided to the City upon the City's request.
b. Contractor shall promptly furnish the City with such information and records which are related to the
Services of this Contract as may be requested by the City.
c. All records relating to Contractor's services under this Contract must be made available to the City, and
the records relating to the Services are City of Yakima records. They must be produced to third parties,
if required pursuant to the Washington State Public Records Act, Chapter 42.56 RCW, or by law. All
records relating to Contractor's services under this Contract must be retained by Contractor for the
minimum period of time required pursuant to the Washington Secretary of State's records retention
schedule.
d. The terms of this section shall survive any expiration or termination of this Contract.
7. Work Made for Hire
All work the Contractor performs under this Contract shall be considered work made for hire,and shall be the property
of the City. The City shall own any and all data,documents,plans,copyrights,specifications,working papers,and any
other materials the Contractor produces in connection with this Contract. On completion or termination of the Contract,
the Contractor shall deliver these materials to the City.
8. Guarantee
Contractor warrants the Services will be free from defects in material and workmanship for a period of one year
following the date of completion and acceptance of the Services.
9. Compliance with Law
Contractor agrees to perform all Services under and pursuant to this Contract in full compliance with any and all
applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body,
whether federal,state, local,or otherwise. Contractor shall procure and maintain all applicable and necessary permits,
licenses and approvals of any federal, state, and local government or governmental authority or this project, pay all
charges and fees, and give all notices necessary and incidental to the due and lawful execution of the work.
a. Procurement of a City Business License. Contractor must maintain a City of Yakima Business License
and pay all charges,fees, and taxes associated with said license.
b. Contractor must provide proof of a valid Washington State Contractor Registration number.
c. Contractor must provide proof of a valid Washington department of Revenue state excise tax registration
number,as required in Title 85 RCW.
d. Contractor must provide proof of a valid Washington Unified Business Identification (UBI) number.
Contractor must have a current UBI number and not be disqualified from bidding on any public works
contract under RCW 39.06.101 or 36.12.065(3).
e. Contractor must provide proof of a valid Washington Employment Security Department number as
required by Title 50 RCW.
f. Foreign(Non-Washington)Corporations: Although the City does not require foreign corporate proposers
to qualify in the City, County or State prior to submitting a proposal, it is specifically understood and
agreed that any such corporation will promptly take all necessary measures to become authorized to
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conduct business in the City of Yakima at their own expense,without regard to whether such corporation
is actually awarded the contract,and in the event that the award is made,prior to conducting any business
in the City.
10. Prevailing Wages
The Contractor will comply with all provisions of Chapter 39.12 RCW-Prevailing Wages on Public Work.
a. RCW 39.12.010-the Prevailing Rate of Wage. It is solely the responsibility of the Contractor to determine
the appropriate prevailing wage rate for the services being provided.
b. RCW 39.12.040- Statement of Intent to Pay Prevailing Wages and an Affidavit of Wages Paid. Before
an awarding agency may pay any sum due on account, it must receive a statement of Intent to Pay
Prevailing Wages approved by the Department of Labor and Industries. Following final acceptance of a
public work project, and before any final money is disbursed, each Contractor and Subcontractor must
submit to the awarding agency an Affidavit of Wages Paid, certified by the Department of Labor and
Industries.
c. RCW 39.12.070-Fees Authorized for Approval Certification and Arbitrations. Any fees charged by the
Department of Labor and Industries for approvals or fees to cover costs of arbitration conducted shall be
the responsibility of the Contractor.
The State of Washington prevailing wage rates applicable for this public works project,which is located in Yakima
County, may be found at the following website address of the Department of Labor and Industries:
https://fortress.wa.qov/In i/wagelookup/prvWagelookup.aspx.
Based on the quote submittal for this project,the applicable effective(start)date of this project for the purposes of
determining prevailing wages is the quote date, February 18,2022.
11. Certified Payroll for Non-Federally Funded Projects
Upon request by the City or by an Interested Party,copies of certified payroll shall be provided to City,with employee
information such as last name,SSN and address, redacted in accordance with RCW 42.56.230, in order to provide for
public records requests.
The City reserves the right to require Contractor to deliver to City a copy of the non-redacted Certified Payroll if City
determines, in its sole discretion, that, such non-redacted copy is necessary or appropriate in order to enable City to
comply with any applicable law.
RCW 42.56.230(7)(a) Personal Information Exemption: Any record used to prove identity, age, residential address,
social security number,or other personal information required to apply for a driver's license or identicard.
RCW 39.12.010(4):An "Interested Party"for the purposes of this chapter shall include a Contractor, Subcontractor,
an employee of a Contractor or Subcontractor, an organization whose members' wages, benefits, and conditions of
employment are affected by this chapter, and the director of labor and industries or the director's designee.
WAC 296-127-320 Payroll:
(1)Each Contractor shall keep accurate payroll records for three years from the date of acceptance of the public works
project by the contract awarding agency, showing the name, address, Social Security number, trade or occupation,
straight time rate, hourly rate of usual benefits as defined by WAC 9S 1 7 4(1), and overtime hours worked each
day and week, including any employee authorizations executed pursuant to WAC 296-127-022,and the actual rate of
wages paid,for each laborer,worker, and mechanic employed by the Contractor for work performed on a public works
project.
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(2) A Contractor shall, within ten days after it receives a written request, from the department or from any interested
party as defined by RCW (4), file a certified copy of the payroll records with the agency that awarded the
public works contract and with the department.
(3)A Contractor's noncompliance with this section shall constitute a violation of RCW
12. Nondiscrimination
During the performance of this Contract,the Contractor agrees as follows:
The Contractor shall not discriminate against any person on the grounds of race, creed,color, religion, national origin,
sex, age, marital status, sexual orientation, pregnancy,veteran's status, political affiliation or belief,or the presence of
any sensory, mental or physical handicap in violation of the Washington State Law Against Discrimination (RCW
chapter 49.60)or the Americans with Disabilities Act(42 USC 12101 et seq.).
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.
In the event of the Contractor's noncompliance with the non-discrimination clause of this contract or with any such
rules, regulations, or orders, this Contract may be cancelled, terminated, or suspended in whole or in part and the
Contractor may be declared ineligible for any future City contracts.
13. Pay Transparency Nondiscrimination Provision
The Contractor will not discharge or in any other manner discriminate against employees or applicants because they
have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However,
employees who have access to the compensation information of other employees or applicants as a part of their
essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise
have access to compensation information, unless the disclosure is(a)in response to a formal complaint or charge, (b)
in furtherance of an investigation, proceeding,hearing,or action, including an investigation conducted by the employer,
or(c)consistent with the contractor's legal duty to furnish information.
14. Indemnification and Hold Harmless
a. Contractor shall take all necessary precautions in performing the Services to prevent injury to persons or
property. The Contractor agrees to release, indemnify, defend, and hold harmless the City, its elected
and appointed officials,officers, employees,agents, representatives, insurers, attorneys, and volunteers
from all liabilities, losses, damages, and expenses related to all claims, suits, arbitration actions,
investigations, and regulatory or other governmental proceedings arising from or in connection with this
Agreement or the acts,failures to act,errors or omissions of the Contractor,or any Contractor's agent or
subcontractor, in performance of this Agreement,except for claims caused by the City's sole negligence.
The City's right to indemnification includes attorney's fees and costs associated with establishing the right
to indemnification hereunder in favor of the City.
b. If any suit,judgment, action, claim or demand arises out of,or occurs in conjunction with, the negligent
acts and/or omissions of both the Contractor and the City, or their elected or appointed officials, officers,
employees, agents, attorneys or volunteers, pursuant to this Contract, each party shall be liable for its
proportionate share of negligence for any resulting suit, judgment, action, claim, demand, damages or
costs and expenses, including reasonable attorneys'fees.
c. Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives
any immunity that may be granted to it under the Washington State industrial insurance act, Title 51
RCW, solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in
any way by any limitation on the amount of damages,compensation or benefits payable to or by any third
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party under workers' compensation acts, disability benefit acts or any other benefits acts or programs.
Contractor shall require that its subcontractors, and anyone directly or indirectly employed or hired by
Contractor, and anyone for whose acts Contractor may be liable in connection with its performance of
this Agreement, comply with the terms of this paragraph, waive any immunity granted under Title 51
RCW, and assume all potential liability for actions brought by their respective employees. The Parties
acknowledge that they have mutually negotiated this waiver.
d. 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, the Contractor's liability,
including the duty and cost to defend,shall be only to the extent of the Contractor's negligence.
e. Nothing contained in this Section or this Contract shall be construed to create a liability or a right of
indemnification in any third party.
f. The terms of this section shall survive any expiration or termination of this Contract.
15. Contractor's Liability Insurance
At all times during performance of the Services and this Contract, Contractor shall secure and maintain in effect
insurance to protect the City and Contractor from and against any and 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
City reserves the right to require higher limits should it deem it necessary in the best interest of the public. Contractor
will provide a Certificate of Insurance to the City as evidence of coverage for each of the policies and outlined herein.
A copy of the additional insured endorsement attached to the policy will be included with the certificate. This Certificate
of insurance shall be provided to the City, prior to commencement of work.
Failure of City to demand such verification of coverage with these insurance requirements or failure of City to identify
a deficiency from the insurance documentation provided shall not be construed as a waiver of Contractor's obligation
to maintain such insurance.
Contractor's insurance coverage shall be primary insurance with respect to those who are Additional Insureds under
this Contract. Any insurance,self-insurance or insurance pool coverage maintained by the City shall be in excess of
the Contractor's insurance and neither the City nor its insurance providers shall contribute to any settlements,defense
costs,or other payments made by Contractor's insurance.
If at any time during the life of the Contract,or any extension,Contractor fails to maintain the required insurance in full
force and effect, all work under the contract shall be discontinued immediately. Any failure to maintain the required
insurance may be sufficient cause for the City to terminate the Contract.
The following insurance is required:
a. Commercial 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 with a 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. If Contractor carries higher coverage limits,such limits shall
be shown on the Certificate of Insurance and Endorsements and the City, its elected and appointed
officials, employees, agents, attorneys and volunteers shall be named as additional insureds for such
higher limits. 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
Agreement 22206S Miller Park Fencing Project Page 5 of 9
duration of this Contract. The certificate of insurance and additional insured endorsement shall name the
City of Yakima, its elected and appointed officials, employees, agents, attorneys 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 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. The
requirements contained herein,as well as City of Yakima's review or acceptance of insurance maintained
by Contractor is not intended to and shall not in any manner limit or qualify the liabilities or obligations
assumed by Contractor under this contract.
b. Automobile Liability Insurance
Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of
insurance as proof of automobile liability insurance with a minimum liability limit of Two Million Dollars
($2,000,000.00)per occurrence. If Contractor carries higher coverage limits, such limits shall be shown
on the Certificate of Insurance and Endorsements and the City, its elected and appointed officials,
employees,agents,attorneys and volunteers shall be named as additional insureds for such higher limits.
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 certificate of insurance and additional insured endorsement shall name the City of Yakima,
its elected and appointed officials, employees, agents, attorneys 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 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. The requirements contained herein, as
well as City of Yakima's review or acceptance of insurance maintained by Contractor is not intended to
and shall not in any manner limit or qualify the liabilities or obligations assumed by Contractor under this
contract. The business auto liability shall include Hired and Non-Owned coverage if necessary.
c. Employer's Liability(Stop Gap)
Contractor and all Subcontractor(s) shall at all times comply with all applicable workers' compensation,
occupational disease,and occupational health and safety laws,statutes,and regulations to the full extent
applicable, and shall maintain Employer's Liability insurance with a limit of no less than
$1,000,000.00. The City shall not be held responsible in any way for claims filed by Contractor or its
employees for services performed under the terms of this Contract. Contractor agrees to assume full
liability for all claims arising from this Contract including claims resulting from negligent acts of all
Subcontractor(s). Contractor is responsible to ensure Subcontractor(s) have insurance as
needed. Failure of Subcontractors(s)to comply with insurance requirements does not limit Contractor's
liability or responsibility.
16. Severability
If any term or condition of this Contract or the application thereof to any person(s) or circumstances is held invalid,
such invalidity shall not affect other terms,conditions or applications which can be given effect without the invalid term,
condition or application. To this end,the terms and conditions of this Contract are declared severable.
17. Contract Documents
This Contract, the Invitation to Quote #22206S, Scope of Work, conditions, addenda, and modifications and
Contractor's proposal (to the extent consistent with Yakima City documents)constitute the Contract Documents and
are complementary. Specific Federal and State laws and the terms of this Contract, in that order respectively,
supersede other inconsistent provisions. These Contract Documents are on file in the Office of the Purchasing
Manager, 129 No. 2nd St.,Yakima, WA,98901, and are hereby incorporated by reference into this Contract.
Agreement 22206S Miller Park Fencing Project Page 6 of 9
18. Termination
Termination for Cause
In the event the Contractor breaches this Contract, the City may terminate the Contract at its sole discretion in such
event that it provides the Contractor with written notice of Contractor's breach and the Contractor fails to cure its breach
within 30 days of this notice.
In the event of the City breaches this Contract,the Contractor may terminate the Contract at its sole discretion in such
event that it provides the City with written notice of City's breach and the City fails to cure its breach of the Contract
within 60 days of this notice.
The following represents a non-exclusive, illustrative list of instances that shall be considered a breach by the
Contractor:
a. Defaults on an obligation under the Contract;
b. Fails to perform any material obligation required under the Contract;
c. Files a petition in bankruptcy,becomes insolvent,or otherwise takes action to dissolve as a legal
entity;
d. Allows any final judgment not to be satisfied or a lien not to be disputed after a legally-imposed,
30-day notice;
e. Makes an assignment for the benefit of creditors;
f. Fails to follow the sales and use tax certification requirements of the State of Washington;
g. Incurs a delinquent Washington tax liability;
h. Becomes a State or Federally debarred Contractor;
i. Is excluded from federal procurement and non-procurement Contracts;
j. Fails to maintain and keep in force all required insurance, permits and licenses as provided in
the Contract;
k. Fails to maintain the confidentiality of the City information that is considered to be Confidential
Information, proprietary,or containing Personally Identifiable Information;
I. Contractor performance threatens the health or safety of a City,County or municipal employee;
or
Termination for Convenience
The City may terminate the Contract,without cause, by providing 30 days written notice of termination.
In the event of termination for convenience,the Contractor shall be entitled to receive compensation for any fees owed
under the Contract. The Contractor shall also be compensated for partially completed services. In this event,
compensation for such partially completed services shall be no more than the percentage of completion of the services
requested, at the sole discretion of the City, multiplied by the corresponding payment for completion of such services
as set forth in the Contract.Alternatively,at the sole discretion of the City,the Contractor may be compensated for the
actual service hours provided.The City shall be entitled to a refund for goods or services paid for but not received or
implemented, such refund to be paid within 30 days of written notice to the Contractor requesting the refund.
Change in Funding
In addition to the above termination provisions, if the funds upon which the City relied to establish this Contract are
withdrawn,reduced,or limited,or if additional or modified conditions are placed on such funding,the City may terminate
this Contract by providing at least five business days written notice to the Contractor. The termination shall be effective
on the date specified in the notice of termination.
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19. Prime Contractor
Contractor is the Prime Contractor hereunder. The Prime Contractor shall be the sole point of contact with regard to
all contractual matters arising hereunder, including the performance of work and the payment of any and all charges
resulting from its contractual obligations.
20. Removal of Subcontractor
If dissatisfied with the background, performance, and/or general methodologies of any subcontractor, the City may
request in writing that the subcontractor be removed. The Contractor shall comply with this request at once and shall
not employ the subcontractor for any further work/services under this Contract.
21. Taxes and Assessments
Contractor shall be solely responsible for and shall pay all taxes,deductions,and assessments,including but not limited
to federal income tax, FICA, social security tax, assessments for unemployment and industrial injury insurance, and
other deductions from income which may be required by law or assessed against either party as a result of this Contract.
In the event the City is assessed a tax or assessment as a result of this Contract, Contractor shall pay the same before
it becomes due.
22. Waiver of Breach
A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Contract 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 Contract,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.
23. Force Majeure
Contractor will not be responsible for delays in delivery due to acts of God, fire, strikes, epidemics, war, riot, delay in
transportation or railcar transport shortages,provided Contractor notifies the City immediately in writing of such pending
or actual delay. Normally, in the event or any such delays(acts or God,etc.)the date of delivery will be extended for
a period equal to the time lost due to the reason for delay.
24. Governing Law
This Contract shall be governed by and construed in accordance with the laws of the State of Washington.
25. Venue
The venue for any action to enforce or interpret this Contract shall lie in a competent jurisdiction in Yakima County,
Washington.
26. Authority
The person executing this Contract,on behalf of Contractor,represents and warrants that he/she has been fully authorized
by Contractor to execute this Contract on its behalf and to legally bind Contractor to all the terms, performances and
provisions of this Contract.
27. Change or Notice
Any alterations, including changes to the nature of the service, made to the Contract shall be rendered in writing and
signed by both responsible parties; no changes without such signed documentation shall be valid. No alterations
outside of the general scope and intent of the original Request for Proposals or in excess of allowable and accepted
price changes shall be made.
In no event shall the Contractor be paid or be entitled to payment for services that are not authorized herein or any
properly executed amendment.
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Notice of Business Changes: Contractor shall notify the City in writing within three(3)business days of any change in
ownership of the facilities of the Contractor or of the facilities of any subcontractor. The Contractor shall notify the City
in writing as soon as possible,and in no event later than three(3)business days,after any decision by the Contractor
to change or discontinue service that will affect services provided to the City under this Contract.
The City shall have the right to renegotiate the terms and conditions of this Contract to the extent required to
accommodate a change in governing law or policy that, in the sole discretion of the City, either substantially and
unreasonably enlarges the Contractor's duties hereunder, or renders performance, enforcement or compliance with
the totality of the Contract impossible,patently unreasonable,or unnecessary. Notices and demands under and related
to this Contract shall be in writing and sent to the parties at their addresses as follows:
TO CITY: City of Yakima Purchasing TO CONTRACTOR: Fencing and Awning
Christina Payer,Buyer II 4810 Beauchene Rd
129 North Second Street Moxee,WA 98936-9734
Yakima,WA 98901
28. Survival
The foregoing sections of this Contract, 1-28 inclusive, shall survive the expiration or termination of this Contract in
accordance with their terms.
IN WITNESS WHEREOF,the parties hereto execute this Contract as of the day and year first above written.
CITY 0 YAKIMA FENCING AND AWNING
By.
City Manager
Date: 1 )DO'a-3 Date: 3/ZSi22
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Iti‘..4 ,Ala ,
City Clerk i ► SVAL j
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��`O���1(5 tt�'1 .0 CITY CONTRACT NO: 4SHINCI t.
RESOLUTION NO: 41/0.
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