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HomeMy WebLinkAbout101215_ca10Department of Public Works O Consent Agenda Jefferson County Board of Commissioners Agenda Request To: Board of Commissioners Philip Morley, County Administrator From: Monte Reinders, P.E., Public Works Director /County Engineer /I Agenda Date: October 12, 2015 ��`` Subject: Execution of Right of Entry Agreement Contract with Sunset Machinery for the sale of surplus Water Tank Statement of Issue: Execution of Contract with Sunset Machinery for the Right of Entry Agreement (Water Tank). Analysis /Strategic Goals /Pro's Et Con's: This contract provides agreement conditions for equipment purchased from the County to the buyer at the surplus equipment auction in September 2015. Fiscal Impact /Cost Benefit Analysis: The bid price paid to the County is $300. Recommendation: Public Works recommends that the Board execute both (2) originals of the Contract and return one (1) original to Public Works for further processing. Department Contact: Tom Boatman, Solid Waste Manager, 385 -9213. Reviewed By: Philip Mdr[,Oy, County 606 Date 1. z- v -7" z-1 l RIGHT OF ENTRY AGREEMENT This RIGHT OF ENTRY AGREEMENT (this "Agreement ") is between [BUYER'S FULL LEGAL NAME], �� T BUYER'S FULL LEGAL ADDRESS], hereinafter referred to as BUYER, and JEFFERSON COUNTY, P. O. Box 1220, Port Townsend WA 98368, the undersigned, hereinafter referred to as COUNTY. RECITALS WHEREAS, the County owns the real property at 325 Landfill Road in Port Townsend, Washington (the "Premises "); and WHEREAS, the County has determined that certain equipment and other property located on the Premises have no further municipal use and the County has decided to publicly auction such equipment and property; and WHEREAS, the Buyer is the successful respondent for the disposition of the equipment and property listed in the inventory attached as Exhibit A pursuant to agreement between the Buyer and the auctioneer acting as the County's agent; and WHEREAS, the Buyer has requested access to the Premises solely for the purpose of removing from the Premises certain equipment and property ( "Components ") listed in Exhibit A located within the Premises (the "Activi "), and the County has agreed to grant such access upon the terms and conditions set forth herein, including but not limited to, those terms and conditions on Exhibit B attached hereto and made a part hereof. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing recitals constitute an integral part of this Agreement and are incorporated herein by this reference with the same force and effect as if set forth herein as agreements of the parties. 2. Grant. Subject to the terms and conditions set forth herein, the County hereby grants to the Buyer a right of entry to the Premises for the sole purpose of allowing the Buyer to perform the Activity and for no other purpose. The right of entry granted hereunder extends to, and the Buyer shall be responsible for, its agents, employees, Buyers, Subcontractors and consultants. This right of entry is non - assignable. 3. Term. The term of this Agreement shall commence upon the date of this Agreement and shall terminate upon thirty (30) days after the date of this Agreement. The Buyer agrees to notify the County promptly upon completing the Activity. 4. Cost. The Buyer shall be responsible for all costs and expenses associated with the Activity and the Activity shall be undertaken by the Buyer without expectation of reimbursement or other credit from County. 5. Compliance with Laws. The Buyer shall comply with all Federal, State, and local laws and ordinances applicable to the work to be done under this Agreement. This Agreement shall be interpreted and construed in accord with the laws of the State of Washington and venue for any cause of action, claim or litigation arising from this Agreement or the Activity shall be in Jefferson County, Washington. Prior to entering onto the Premises, the Buyer agrees to secure, or cause its agents, employees, Buyers, Subcontractors, or consultants to secure, at their sole cost and expense, all necessary permits and governmental approvals to perform the Activity. 6. Indemnification. The Buyer shall indemnify and hold the County, and its officers, employees, and agents harmless from and shall process and defend at its own expense, including all costs, attorney fees and expenses relating thereto, all claims, demands, or suits at law or equity arising in whole or in part, directly or indirectly, from the Buyer's negligence or breach of any of its obligations under this Agreement; provided that nothing herein shall require a Buyer to indemnify the County against and hold harmless the County from claims, demands or suits based solely upon the conduct of the County, its officers, employees and agents, and; provided further that if the claims or suits are caused by or result from the concurrent negligence o£ (a) the Buyer's agents or employees; and, (b) the County, its officers, employees and agents, this indemnity provision with respect to claims or suits based upon such negligence, and /or the costs to the County of defending such claims and suits, etc., shall be valid and enforceable only to the extent of the Buyer's negligence, or the negligence of the Buyer's agents or employees. Claims against the County shall include, but not be limited to assertions that the use and transfer of any software, book, document, report, film, tape, or sound reproduction of material of any kind, delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, or otherwise results in an unfair trade practice or an unlawful restraint of competition. The Buyer specifically assumes potential liability for actions brought against the County by Buyer's employees, including all other persons engaged in the performance of any work or service required of the Buyer or performed by others at the Buyer's request under this Agreement and, solely for the purpose of this indemnification and defense, the Buyer specifically waives any immunity under the state industrial insurance law, Title 51 R.C.W. The Buyer recognizes that this waiver was specifically entered into pursuant to provisions of R.C.W. 4.24.115 and was subject of mutual negotiation. it 7. Buyer's Relationship to the County. The Buyer's relation to the County shall be at all times as an independent Buyer, and nothing herein contained shall be construed to create a relationship of employer- employee or master - servant, and any and all employees of the Buyer or other persons engaged in the performance of any work or service required of the Buyer under this Agreement shall be considered employees of the Buyer only and any claims that may arise on behalf of or against said employees shall be the sole obligation and responsibility of the Buyer. 8. Assignment. The Buyer shall not sublet or assign any of the services covered by this contract without the express written consent of the County or its authorized representative. Assignment does not include printing or other customary reimbursable expenses that may be provided in an agreement. No part of the goods, work, or services to be provided under this Contract including, but not limited to the Activity, may be subcontracted without the prior written consent of the County; but in no case will such consent relieve the Buyer from its obligations, or change the terms of the Contract. The Buyer must notify the County of the names of all Subcontractors to be used and shall not employ any that the County has not approved. Subcontracting of the services or work or any portion of the Contract without the prior written consent of the County is null and void. Further, the Buyer will not make any substitution of a previously approved Subcontractor without the prior written consent of the County; any substitution of a Subcontractor without the prior written consent of the County is null and void. The Buyer will only subcontract with competent and responsible Subcontractors. If, in the judgment of the County, any Subcontractor is careless, incompetent, violates safety or security rules, obstructs the progress of the services or work, acts contrary to instructions, acts improperly, is not responsible, is unfit, is incompetent, violates any laws applicable to this Contract, or fails to follow the requirements of this Contract, then the Buyer will, immediately upon notice from the County, discharge or otherwise remove such Subcontractor and propose an acceptable substitute for County approval. 9. Security Bond. Nothing in the foregoing clause shall prevent the County, at its option, from additionally requesting that the Buyer deliver to the County an executed bond as security for the faithful performance of this contract and for payment of all obligations of The Buyer. For Contracts of $35,000 or less, the County may waive the payment and performance bond requirements of chapter 39.08 RCW and the retainage requirements of chapter 60.28 RCW. 10. Severability. The invalidity, illegality, or unenforceability of any one or more phrases, sentences, clauses, or sections in this Contract does not affect the remaining portions of this Contract. 11. Entire Contract. The Contract Documents constitute the entire agreement between the parties and may not be modified except by the subsequent written agreement of the parties. iii 12. Applicable Law. All questions with respect to the construction of this Agreement and the rights and liabilities of the parties hereto, shall be brought only in the State of Washington and the parties hereto consent to jurisdiction and venue in such State. 13. Attorney's Fees. In the event of any dispute under this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fee and costs, in addition to all other relief to which it may be entitled. 14. Insurance. The Buyer must provide and maintain at Buyer's own expense, until Contract completion and during the time period following completion if Buyer is required to return and perform any additional actions to comply with this Agreement or complete the Activity, the insurance coverages and requirements specified below, insuring all operations related to the Agreement. (a) Workers Compensation and Employers Liability Insurance. The Buyer shall procure and maintain for the life of the contract, Workers Compensation Insurance, including Employers Liability Coverage, in accordance with the laws of the State of Washington. (b) General Liability - with a minimum limit .per occurrence of one million dollars ($1,000,000) and an aggregate of not less than two million dollars ($2,000,000) for bodily injury, death and property damage unless otherwise specified in the contract specifications. This insurance coverage shall contain no limitations on the scope of the protection provided and indicate on the certificate of insurance the following coverage: i. Broad Form Property Damage with no employee exclusion; ii. Personal Injury Liability, including extended bodily injury iii. Broad Form Contractual /Commercial Liability including completed operations (Buyers only); iv. Premises - Operations Liability (M &C); v. Independent Buyers and Subcontractors; and vi. Blanket Contractual Liability. The County shall be named as an additional insured party on a primary, non- contributory basis under this policy. Subcontractors performing work for the Buyer must maintain limits of not less than $1,000,000 with the same terms herein. (c) Automobile - with a minimum limit per occurrence of $1,000,000 for bodily injury, death and property damage unless otherwise specified in the contract specifications. This insurance shall indicate on the certificate of insurance the following coverage: i. Owned automobiles; IV ii. Hired automobiles; and, iii. Non -owned automobiles. The County shall be named as an additional insured party on a primary, non- contributory basis under this policy. Subcontractors performing work for the Buyer must maintain limits of not less than $1,000,000 with the same terms herein. (d) Buyer's Pollution Liability Insurance. When any work is performed which may cause a pollution exposure, Buyer's Pollution Liability Insurance with limits of not less than $1,000,000 per occurrence shall be provided covering bodily injury, Premises damage and other losses arising from the environmental condition of the Premises. Coverage shall include, at a minimum, completed operations, contractual liability, defense, excavation, environmental cleanup, remediation and disposal. When a policy is renewed or replaced, the policy retroactive date must coincide with, or precede, the start of work under this Agreement. A claims -made policy that is not renewed or replaced must have an extended reporting period of two (2) years. The County shall be named as an additional insured with respect to such coverage on a primary, non - contributory basis. (e) Propelly. Subject to the terms and conditions of this Agreement, the Buyer is responsible for all loss or damage to County property at full replacement cost. The Buyer is responsible for all loss or damage to personal property (including, but not limited to, materials, equipment, tools and supplies) owned, rented or used by Buyer. Any deductibles or self - insured retention shall be declared to and approved by the County prior to the approval of the contract by the County. At the option of the County, the insurer shall reduce or eliminate deductibles or self - insured retention or The Buyer shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. The Buyer shall include all Subcontractors as insured under its insurance policies or shall furnish separate certificates and endorsements for each Subcontractor. All insurance provisions for Subcontractors shall be subject to all of the requirements stated herein. Failure of The Buyer to take out and /or maintain any required insurance shall not relieve The Buyer from any liability under the Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations concerning indemnification. It is agreed by the parties that insurers shall have no right of recovery or subrogation against the County (including its employees and other agents and agencies), it being the intention of the parties that the insurance policies so affected shall protect both parties and be primary coverage for U9 any and all losses covered by the above described insurance. It is further agreed by the parties that insurance companies issuing the policy or policies shall have no recourse against the County (including its employees and other agents and agencies) for payment of any premiums or for assessments under any form of policy. It is further agreed by the parties that any and all deductibles in the above described insurance policies shall be assumed by and be at the sole risk of the Buyer. It is agreed by the parties that judgments for which the County may be liable, in excess of insured amounts provided herein, or any portion thereof, may be withheld from payment due, or to become due, to The Buyer until such time as the Buyer shall furnish additional security covering such judgment as may be determined by the County. The County reserves the right to request additional insurance on an individual basis for extra hazardous contracts and specific service agreements. Any insurance coverage for third party liability claims provided to the County by a "Risk Pool" created pursuant to Ch. 48.62 RCW shall be non - contributory with respect to any policy of insurance the Buyer must provide in order to comply with this Agreement. If the proof of insurance or certificate indicating the County is an "additional insured" to a policy obtained by the Buyer refers to an endorsement (by number or name) but does not provide the full text of that endorsement, then it shall be the obligation of the Buyer to obtain the full text of that endorsement and forward that full text to the County. The County may, upon the Buyer's failure to comply with all provisions of this contract relating to insurance, withhold payment or compensation that would otherwise be due to the Buyer. The Buyer is responsible for all loss or damage to County property including the vehicles or equipment full replacement cost while in Buyer's care, custody and control. The Buyer is responsible for all loss or damage to personal property (including materials, equipment, tools and supplies) owned, rented or used by Buyer. The insurance Buyer is obligated to obtain and maintain under this Contract shall not in any manner limit or qualify the liabilities or obligations of the Buyer under this Agreement or to an injured third party. 15. Inspection and Work. The Buyer agrees to accept the Premises in an "As -Is" condition and shall carefully inspect, or cause its agents, employees, Buyers, Subcontractors or consultants to carefully inspect, the Premises, prior to commencing any Activity to ensure that such Activity will not damage, except for the limited Minor Repair items appearing in Exhibit B, the Premises or any surrounding Premises, structures, utility lines or subsurface lines or cables. The Buyer and its agents, employees, Buyers, Subcontractors or consultants shall take all reasonable safety precautions to ensure that the Activity will not pose a danger to the public or have a negative impact on the neighboring community, including, without limitation, adequately securing the Premises throughout the term of this Agreement. The Buyer and its agents, employees, Buyers, vi Subcontractors and consultants shall perform the Activity in a good and workmanlike manner with due care and diligence, and in accordance with all applicable Laws. The Buyer and its agents, employees, Buyers, Subcontractors and consultants shall keep the Premises and any adjoining sidewalks and streets free of debris and materials and generally in a clean and safe condition throughout the term of this Agreement. The Buyer and its agents, employees, Buyers, Subcontractors and consultants shall limit their activities to those reasonably necessary to perform the Activity. The County reserves the right to inspect the Activity throughout the term of this Agreement. Neither the Buyer nor its agents, employees, Buyers, Subcontractors or consultants shall conduct any activity on the Premises that may in any manner injure the health, safety and welfare of the public, diminish the value of the Premises, or violate any Laws, including, without limitation, any environmental laws. 16. Completion. Upon completion of the Activity, the Buyer shall promptly restore the Premises to its condition as of the date hereof, including but not limited to the restoration conditions set forth in Exhibit B, and shall remove all equipment and debris placed on the Premises by the Buyer or its agents, employees, Buyers, Subcontractors or consultants. The Buyer shall remove all wastes generated as a result of the Activity and dispose of it in accordance with all applicable Laws. 17. No Liens. The Buyer shall keep the Premises free from liens and encumbrances arising out of any activities performed, materials furnished or obligations incurred by or for the Buyer. 18. No Warranties. The County makes no warranties or representations as to the ownership, physical, or environmental condition of the Premises. The Buyer agrees to accept the Premises in an "As -Is" condition and shall enter onto the Premises and into this Agreement at its own risk. 19. Right to Terminate. Either party may terminate this Agreement for any reason upon prior written notice of one (1) day to the other party. 20. Amendment. This Agreement may not be amended, extended, or modified without the mutual written consent of the parties hereto. 21. Captions. The section headings in this Agreement are inserted for convenience of reference only and shall not in any way affect the meaning or construction of the Agreement. 22. Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties and supersedes any prior oral or written agreements with respect to the matters stated herein. 23. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original instrument and all of which together shall constitute one and the same instrument. A facsimile, electronic, or photocopy signature shall have the same legal effect as an original signature. vii 24. No Other Rights. This Agreement does not give the Buyer any other right with respect to the Premises, including, but no limited to, closure of streets, sidewalks, or other public thoroughfares. Any rights not specifically granted to the Buyer by and through this document are reserved exclusively to County. Execution of this agreement does not obligate the County in any manner and the County shall not undertake any additional duties or services. 25. No Substitute for Required Permitting. The Buyer must secure all other permits and approvals that may be required to undertake the Activity. The Buyer understands that this Right of Entry Agreement shall in no way act as a substitute for any other permitting or approvals that may be required to undertake the Activity. 26. County Use Paramount. Buyer affirms that the Premises are used as the County's recycling facility. Buyer acknowledges that the most important use of the Premises is as County's recycling facility or any other use determined by County. Buyer shall refrain from undertaking any activities that interfere with County's use (or any County's Buyer's use) of the Premises. Buyer shall coordinate dates and times of access to the Premises through County. 27. Vandalism, Theft and Repairs. Buyer shall be responsible for any damage to the Premises caused by acts of vandalism, theft, or negligence of Buyer and its agents, employees, invitees, Buyers, Subcontractors and consultants entering the Premises. Buyer shall assume all responsibility for any repairs to the Premises necessitated by the negligence, vandalism, theft, or misuse of the Premises or equipment therein by Buyer and its agents, employees, invitees, Buyers, Subcontractors and consultants entering the Premises. 28. Full Liability. The Buyer assumes full legal and financial responsibility and all liability for any and all use of the Premises by the Buyer, Buyer's staff, Buyer's agents, Buyer's invitees entering the Premises. 29. No Principal/Agent or Partnership Relationship. Nothing contained in this Agreement shall be deemed or construed by the parties hereto nor by any third party as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto. (Signature Page Follows) viii IN WHEREOF, the parties here -to have executed this Agreement to be effective on the date of its signing by the COUNTY. '2L dMd 4A_—_ Buyer's Name (Please print) me of uyer's Representative (Please print) Lz "444 o4 Title of Buyer's Representative's (Please print) yer's Re resentative's Signature (Sign) P� D to JEFFERSON COUNTY BOARD OF COMMISSIONERS David W. Sullivan, Chair Phil Johnson, Member Kathleen Kler, Member Date Approved as to ,(' Si€ Da ix only: Attorney S od'cie'5 Date EXHIBIT A INVENTORY OF PROPERTY AND EQUIPMENT TO BE REMOVED FROM PREMISES 15,000 gallon water storage tank and hydrant See Auction Description. x EXHIBIT B REMOVAL OF COMPONENTS FROM PREMISES AND REQUIRED REPAIR TO DAMAGED PREMISES AND PROPERTY The Buyer's removal of some components may be possible only by cutting or disassembling the components; the Buyer is responsible for removal of all these components, regardless of size and at its own expense. Buyer is responsible for taking measurements of components in its inspection of the water storage tank and the Premises prior to bidding. Buyer will NOT be responsible for the following minor repairs ( "Minor Repairs "): 1. Removing concrete foundation; 2. Removal of bolts or other metal structures from poured concrete, provided the protruding portions of all such components are removed and trimmed or ground to be even with the surface of the concrete and to pose no hazard to the movement of persons, vehicles or equipment on or around the surface; and Buyer's responsibility for repair shall include, but not be limited to, the following repairs to the Components and Premises: 1. Any and all repairs required by the County to repair to its previous condition any section of the Premises damaged by the Buyer or any of its agents, employees, Buyers, Subcontractors or consultants during the removal of any Components; 2. Filling of holes, pits and other sub - surface areas following the removal of the water storage cp- tank Components that occupied those spaces; and 3. Any and all repairs required by the County to repair to its previous condition any existing portion of the Premises that was subject to any opening or deconstruction by the Buyer or any of its agents, employees, Buyers, Subcontractors or consultants to facilitate the removal of any of the Components. The condition, loss of and damage to the water storage tank Components shall be the responsibility of the Buyer at the time of delivery of the Bill of Sale by the auctioneer (acting as the County's agent) to the Buyer, which such delivery of Bill of Sale shall precede the removal of the Components. The County assumes no responsibility for loss of and/or damage to the water storage tank Components or any property of the Buyer following the issuance of the Bill of Sale. The Buyer, at its own cost and expense, may choose to provide a security guard or guards, subject to the approval of the County, provided the security guard or guards are licensed and bonded, at any or all times between the issuance of the Bill of Sale and the completion of the Buyer's removal of the water storage tank. At any or all times, the County reserves the right to have its own employees or contracted guards oversee and inspect within the grounds of the Premises during the Buyer's removal xi of the Components. With respect to the recycling system Premises, the Buyer and its agents, employees, Buyers, Subcontractors or consultants shall be responsible for any and all Claims to the Premises where such Claims are caused in full or in part by the Buyer's or its agents, employees, contractors, subcontractors or consultants negligence or intentional acts or omissions. xii