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HomeMy WebLinkAbout020722ca11 Department of Public Works O Consent Agenda Page 1 of 1 Jefferson County Board of Commissioners Agenda Request To: Board of Commissioners Mark McCauley, Interim County Administrator 1 From: Monte Reinders, Public Works Director/County Engineer z_ Agenda Date: February 7, 2021 Subject: Donation of Construction Services Agreement for JUMP! Project Statement of Issue: Tim Thomas of Bernt Ericsen Excavating pledged the donation of site preparation services including clearing, grubbing, stripping, and exporting soil for the JUMP! Playground at HJ Carroll Park. An agreement enabling this generous donation has been prepared for approval by the BoCC. Analysis/Strategic Goals/Pro's Et Con's: The playground is the only one of its type in Jefferson County, or within a 1 hour drive of HJ Carroll Park. The playground will be attractive and useful to all children. The board of Washington Wildlife and Recreation Coalition formally recognized the project in the fall of 2021. The playground will benefit the health, resilience, and economic prosperity of the entire community. This donation is one example of the high level of community support for this project. Fiscal Impact/Cost Benefit Analysis: This donation is valued at $27,429. There are only minimal costs to Jefferson County associated with this agreement. Recommendation: Approve the contract and return 3 copies to Public Works. Department Contact: Matt Tyler Reviewed By: 744, "07Z,R Mark McCaul , Interim County Admi A•tor Date Agreement for Donation of Construction Services Between Bernt Ericsen Excavating, Inc. and Jefferson County This Agreement for Donation of Construction Services (this Agreement) is between Jefferson County (the County, as defined below) and Bernt Ericsen Excavating (as defined below). 1. Purpose of this Agreement. The purpose of this Agreement is to outline the terms and conditions that the County will accept Bernt Ericsen Excavating's donation to the Jefferson Universal Movement Playground (JUMP!). 2. Consideration. The parties estimate that the site preparation services proposed for donation are valued at $27,429 at HJ Carroll Park including: (1) clearing and grubbing of approximately 17,216 square feet; and (2) stripping and exporting approximately 71 cubic yards of top soil. Jefferson County accepts the offer of Bernt Ericsen Excavating to donate site preparation services under the terms and conditions of this Agreement.. Bernt Ericsen Excavating is performing the volunteer services to gain goodwill by being charitable citizens of Jefferson County. The County agrees to respond truthfully to any inquiries about the volunteer services being provided pursuant to this Agreement and to provide reasonable assistence to Bernt Ericsen Excavating in promoting its volunteer services performned pursuant of this Agreement The parties agree that the mutual promises in this agreement constitute good and valuable consideration. 3. Definitions. a. "Agreement" means this Agreement for Donation of Construction Services. b. "JUMP!" means the accessible playground located at HJ Carroll Park. See Exhibit A for project specifications and design, and Exhibit B for project roles and responsibilities. c. "County" means Jefferson County, Washington, through its Public Works Department, Parks and Recreation Division, 623 Sheridan St., Port Townsend, WA 98368. Phone: (360) 385-9129. d. `Bernt Ericsen Excavating" means Bernt Ericsen Excavating, Inc. (UBI Number 602 764 805), a residential, commercial, and municipal excavation contractor founded in 1987, and located at 11 Hope Lane, Port Townsend, Washington. Bernt Ericsen Excavating is owned and operated by Tim Thomas. e. "Parties" means the Bernt Ericsen Excavating and the County. f. "Party" means one of the parties. g. "Work" means the volunteer services provided by Bernt Ericsen Excavating pursuant to the terms and conditions of this Agreement. 4. Effective Date. Page 1 of 12 This Agreement is effective upon the last signature of a party. 5. Contingent Upon Approval by the Board of County Commissioners. This Agreement is contingent upon its approval by the Jefferson County Board of Commissioners. 6. Termination. The end date of this Agreement is December 31, 2022. 7. JUMP! Ownership. JUMP! is the property of Jefferson County. There is no transfer of ownership, responsibility or authority for JUMP! under this Agreement. 8. Persons Performing Work for Bernt Ericsen Excavating Are Independent from the County. a. Subject to the terms and conditions of this Agreement, Bernt Ericson Excavating is responsible for the performance of any work performed on its behalf pursuant to this Agreement. b. Bernt Ericsen Excavating shall be responsible for any compensation paid to anyone performing work pursuant to this Agreement. c. No person performing the work on behalf of Bernt Ericsen Excavating pursuant to this Agreement shall become or be considered an agent, an employee or a servant of the County. d. No person performing work on behalf of Bernt Ericsen Excavating pursuant to this Agreement shall be compensated by the County or paid any County benefits, including, but not limited to: retirement, vacation pay; holiday pay; sick leave pay; medical, dental or other insurance benefits; fringe benefits; or any other rights or privileges afforded to Jefferson County employees. e. Bernt Ericsen Excavating agrees to file all necessary governmental documents, including appropriate tax returns, reflecting income status independent from the County for work performed pursuant to this Agreement. Should any governmental agency audit any party or request information on either party, the parties agree to furnish immediately the requesting party with any records, including tax returns, relating to the work performed under this Agreement. 9. No Modification of Design and Specifications. No modifications to the design and specifications of the resurfacing project provided in Exhibit A are allowed without prior written approval of the County. 10. Indemnity. a. To the extent of its comparative liability, each party agrees to indemnify, defend and hold the other party, its officers, officials, employees, agents and volunteers (and their marital communities), harmless from and against any and all claims, damages, losses Page 2 of 12 and expenses, including but not limited to court costs, attorney's fees and alternative dispute resolution costs, for any personal injury, for any bodily injury, sickness, disease or death and for any damage to or destruction of any property (including the loss of use resulting therefrom) which are alleged or proven to be caused by an act or omission, negligent or otherwise, of its officers, officials, employees, agents or volunteers (and their marital communities). b. A party shall not be required to indemnify, defend, or hold the other party or its officers, officials, employees, agents and volunteers (and their marital communities) harmless if the claim, damage, loss or expense for personal injury, for any bodily injury, sickness, disease or death or for any damage to or destruction of any property (including the loss of use resulting therefrom) is caused by the sole act or omission of the other party or its officers, officials, employees, agents or volunteers. c. In the event of any concurrent act or omission of the parties and their officers, officials, employees, agents and volunteers, negligent or otherwise, these indemnity provisions shall be valid and enforceable only to the extent of the comparative liability of each party and its officers, officials, employees, agents or volunteers. d. The parties agree to maintain a consolidated defense to claims made against them and to reserve all indemnity claims against each other until after liability to the claimant and damages, if any, are adjudicated. If any claim is resolved by voluntary settlement and the parties cannot agree upon apportionment of damages and defense costs, they shall submit apportionment to binding arbitration. e. The indemnification obligations of the parties shall not be limited in any way by the Washington State Industrial Insurance Act, Title 51 RCW, or by application of any other workmen's compensation act, disability benefit act or other employee benefit act. Each party hereby expressly waives any immunity afforded by such acts to the extent required by a party's obligations to indemnify, defend and hold harmless the other party, its officers, officials, employees, agents and volunteers (and their marital communities). A party's waiver of immunity does not extend to claims made by its own employees directly against that party as employer. The indemnity provisions of this Section 10 are a material inducement to enter into this Agreement and have been mutually negotiated. f. The provisions of this Section 10 shall survive the expiration or termination of this Agreement. 11. Insurance Requirements. a. Any deductibles or self -insured retention shall be declared to and approved by the County prior to the approval of this Agreement by the County. b. Failure of Bernt Ericsen Excavating to take out or maintain any required insurance shall not relieve Bernt Ericsen Excavating from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations concerning indemnification of the County. Page 3 of 12 c. Any deductibles or self -insured retention shall be declared to and approved by the County prior to the approval of this Agreement by the County. At the option of the County, the insurer shall reduce or eliminate deductibles or self -insured retention, or Bernt Ericsen Excavating shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d. Failure of Bernt Ericsen Excavating to take out or maintain any required insurance shall not relieve Bernt Ericsen Excavating from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations concerning indemnification of the County. e. Bernt Ericsen Excavating's insurers shall have no right of recovery or subrogation against the County, its officers, officials, employees, agents and volunteers (and their marital communities), it being the intention of the parties that the insurance policies so affected shall protect all the parties and shall be primary coverage for all losses covered by the above described insurance. f. Insurance companies issuing Bernt Ericsen Excavating's insurance policy or policies shall have no recourse against the County, its officers, officials, employees, agents and volunteers (and their marital communities) for payment of any premiums or for assessments under any form of insurance policy. g. All deductibles in Bernt Ericsen Excavating's insurance policies shall be assumed by and be at the sole risk of Bernt Ericsen Excavating. h. Any judgments for which the County may be liable, in excess of insured amounts required by this Agreement, or any portion thereof, may be withheld from payment due, or to become due, to Bernt Ericsen Excavating until Bernt Ericsen Excavating shall furnish additional security covering such judgment as may be determined by the County. i. Any 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 insurance policy Bernt Ericsen Excavating shall provide to comply with this Agreement. j. The County may, upon Bernt Ericsen Excavating's failure to comply with all provisions of this Agreement relating to insurance, withhold payment or compensation that would otherwise be due to Bernt Ericsen Excavating. k. Bernt Ericsen Excavating shall provide a copy of all insurance policies specified in this Agreement. 1. Written notice of cancellation or change in Bernt Ericsen Excavating's insurance required by this Agreement shall reference the project name and agreement number and shall be mailed to the County at the following address: Jefferson County Risk Management, P.O. Box 1220, Port Townsend, WA 98368. in. Bernt Ericsen Excavating's liability insurance provisions shall be primary and noncontributory with respect to any insurance or self-insurance programs covering the Page 4 of 12 County, its officers, officials, employees, agents and volunteers (and their marital communities). n. Any failure to comply with reporting provisions of the insurance policies shall not affect coverage provided to the County, its officers, officials, employees, agents and volunteers (and their marital communities). o. Bernt Ericsen Excavating's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. p. Bernt Ericsen Excavating shall include all subcontractors as insured under its insurance policies or shall furnish separate certificates and endorsements for each subcontractor. All insurance coverage for subcontractors shall be subject to all the requirements stated in this Agreement. The insurance limits mandated for any insurance coverage required by this Agreement are not intended to be an indication of exposure nor are they limitations on indemnification. q. Bernt Ericsen Excavating shall maintain all required insurance policies in force from the time services commence until services are completed. Certificates, insurance policies, and endorsements expiring before completion of services shall be promptly replaced. r. Bernt Ericsen Excavating shall maintain commercial general liability coverage on a form acceptable to Jefferson County Risk Management for bodily injury, personal injury, and property damage, with a limits of not less than in the amount of at least $2 million per occurrence, for bodily injury, including death, and property damage. The commercial general liability insurance coverage shall contain no limitations on the scope of the protection provided and include the following minimum 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 and product liability coverage; (iv) Premises — operations liability (M&C); (v) Independent contractors and subcontractors; and, (vi) Blanket contractual liability. s. Bernt Ericsen Excavating shall maintain business automobile liability insurance on a form acceptable to Jefferson County Risk Management with limits of not less than in the amount of at least $1 million per occurrence. t. Bernt Ericsen Excavating shall maintain workers' compensation insurance at its own expense, as required by Title 51 RCW, for the term of this Agreement and shall provide evidence of coverage to Jefferson County Risk Management, upon request. Worker's compensation insurance covering all employees with limits meeting all applicable state and federal laws. This coverage shall include Employer's Liability with limits meeting all applicable state and federal laws. This coverage shall extend to any subcontractor that does not have their own worker's compensation and employer's liability insurance. Bernt Ericsen Excavating expressly waives by mutual negotiation all immunity and limitations on liability, with respect to the County, under any industrial insurance act, disability benefit act, or other employee benefit act of any jurisdiction which would otherwise be applicable in the case of such claim. If the Page 5 of 12 County incurs any costs to enforce the provisions of this subsection, all cost and fees shall be recoverable from Bernt Ericsen Excavating. 12. No Harassment or Discrimination. Any form of harassment, discrimination, or improper fraternization with any County employee is strictly prohibited. Bernt Ericsen Excavating shall not discriminate on the grounds of race, color, national origin, religion, creed, age, sex, sexual orientation, or the presence of any physical or sensory disability in the selection and retention of employees or procurement of materials or supplies. 13. Drug Use Policy. While performing services, the use of illegal drugs, alcohol, or controlled substances on the County property or premises is strictly prohibited. Bernt Ericsen Excavating's employees shall not perform services while under the influence of drugs or alcohol, and if discovered, may be reported to the appropriate law enforcement agency. 14. Tobacco Policy. The use of tobacco of any kind on property or premises of the County shall comply with the County policies. 15. Severability. Provided it does not result in a material change in the terms of this Agreement, if any provision of this Agreement or the application of this Agreement to any person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and the application this Agreement shall not be affected and shall be enforceable to the fullest extent permitted by law. 16. Disputes. The parties agree to use their best efforts to prevent and resolve disputes before they escalate into claims or legal actions. Any disputed issue not resolved pursuant to the terms of this Agreement shall be submitted in writing within 10 days to the County Risk Manager, whose decision in the matter shall be final, but shall be subject to judicial review. If either party deem it necessary to institute legal action or proceeding to enforce any right or obligation under this Agreement, each party in such action shall bear the cost of its own attorney's fees and court costs. Any legal action shall be initiated in the Superior Court of the State of Washington for Jefferson County. The parties agree that all questions shall be resolved by application of Washington law and that the parties have the right of appeal from such decisions of the Superior Court in accordance with the laws of the State of Washington. Bernt Ericsen Excavating hereby consents to the personal jurisdiction of the Superior Court of the State of Washington for Jefferson County. 17. Legal and Regulatory Compliance. While performing under this Agreement, Bernt Ericsen Excavating, subcontractors, and their employees are required to comply with all applicable local, state and federal laws, codes, ordinances, and regulations, including but not limited to: (a) Applicable regulations of the Washington Department of Labor and Industries, including WA-DOSH Safety Regulations; and, (b) State and Federal Anti -Discrimination Laws. 18. Safety Consideration. While performing under this Agreement, Bernt Ericsen Excavating shall be responsible for: a. Compliance with all relevant state and federal workplace safety requirements to include compliance with the County's safety directives and policies; and, b. Ensuring that its employees performing services are trained in the safety procedures appropriate to assigned work. Page 6 of 12 19. Prevailing Wage. Washington State Prevailing wage rules apply to this donation. Volunteers may work without pay. Paid employees of Bernt Ericsen Excavating working on this project must be paid prevailing wage. In this case, Bernt Ericsen Excavating must file an intent to pay prevailing wage, and an affidavit of wages paid. 20. Section Headings. The headings of the sections of this Agreement are for convenience of reference only and are not intended to restrict, affect, or be of any weight in the interpretation or construction of the provisions of the sections or this Agreement. 21. Limits of Any Waiver of Default. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party. 22. No Oral Waiver. No term or provision of this Agreement will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. Failure of a party to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection with, shall not waive such breach or default. 23. Binding on Successors, Heirs and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties' successors in interest, heirs and assigns. 24. No Assignment. Bernt Ericsen Excavating shall not sell, assign, or transfer any of rights obtained by this Agreement without the express written consent of the County. 25. No Third -party Beneficiaries. The parties do not intend, and nothing in this Agreement shall be construed to mean, that any provision in this Agreement is for the benefit of any person or entity who is not a party. 26. Modification of this Agreement. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of all the parties. 27. Signature in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpart. Execution of this Agreement at different times and places by the parties shall not affect the validity of this Agreement, so long as all the parties execute a counterpart of this Agreement. 28. Facsimile and Electronic Signatures. The parties agree that facsimile and electronic signatures shall have the same force and effect as original signatures. 29. Arms -Length Negotiations. The parties agree that this Agreement has been negotiated at arms -length, with the assistance and advice of competent, independent legal counsel. 30. Maintenance of Records. a. Each party shall maintain books, records, documents and other evidence that sufficiently and properly reflect all direct and indirect costs expended by either party in the performance of this Agreement. These records shall be subject to inspection, review or audit by personnel of both parties, other personnel duly authorized by either party, the Office of the State Auditor, and federal officials so authorized by law. Page 7 of 12 b. All books, records, documents, and other material relevant to this Agreement will be retained for six years after expiration of agreement. The Office of the State Auditor, federal auditors, the Jefferson County Auditor, and any persons duly authorized by the parties shall have full access and the right to examine any of these materials during this period. c. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved. d. Records and other documents, in any medium, furnished by one party to this Agreement to the other party, will remain the property of the furnishing party, unless otherwise agreed. 31. Public Records Act. a. Notwithstanding any provisions of this Agreement to the contrary, to the extent any record, including any electronic, audio, paper or other media, is required to be kept or indexed as a public record in accordance with the Washington Public Records Act, Chapter 42.56 RCW (as may be amended), Bernt Ericsen Excavating agrees to maintain all records constituting public records and to produce or assist the County in producing such records, within the time frames and parameters set forth in state law. b. Bernt Ericsen Excavating also agrees that upon receipt of any written public record request, Bernt Ericsen Excavating shall, within two business days, notify the County by providing a copy of the request per the notice provisions of this Agreement. c. This Agreement, once executed, will be a "public record" subject to production to a third party if it is requested pursuant to the Washington Public Records Act, Chapter 42.56 RCW (as may be amended). 32. Attachments. Any document in this Agreement identified as an attachment is part of this Agreement and is incorporated by reference into this Agreement. 33. Representations and Warranties. The parties represent and warrant that: a. Each person signing this Agreement is fully authorized to enter into this Agreement on behalf of the party for whom signature is being made; b. Each party that is a corporate entity is duly organized and validly existing in good standing under the laws of one of the states of the United States of America; The making and performance of this Agreement will not violate any provision of law or of any party's articles of incorporation, charter, or by-laws; d. Each corporate party has taken all necessary corporate and internal legal actions to duly approve the making and performance of this Agreement and that no further corporate or other internal approval is necessary; and, Page 8 of 12 e. Each party has read this Agreement in its entirety and know the contents of this Agreement, that the terms of this Agreement are contractual and not merely recitals, and that they have signed this Agreement, having obtained the advice of legal counsel. (SIGNATURES FOLLOW ON THE NEXT PAGE) Page 9 of 12 JEFFERSON COUNTY WASHINGTON Board of County Commissioners Jefferson County, Washington BY: Kate Dean, Chair Date By: Greg Brotherton, Commissioner Date By: Heidi Eisenhour, Commissioner Date SEAL: ATTEST: Carolyn Galloway Date Clerk of the Board Approved as to form only: '. L �,. December 16, 2021 Philip C. Hunsucker Date Chief Civil Deputy Prosecuting Attorney Page 10 of 12 BERNT ERICSEN EXCAVATING, INC. Signature Name: _ '[Lr►� '1'4 �a Ot4� - Title �i� -41 _ Date:- f Agreement for Donation of Construction Services by Bernt Ericsen Excavating to Jefferson County EXHIBIT A Plans and Specifications EXHIBIT A Please refer to the final plans and specifications. Page 11 of 12 Agreement for Donation of Construction Services by Bernt Ericsen Excavating to Jefferson County EXHIBIT B Roles and Responsibilities of Each Party Jefferson County Public Works is responsible for the following work: 1. Locate utilities, 2. Mark limits of construction, 3. Mark trees for removing and protecting, 4. Designate new locations for the concrete picnic tables, 5. Provide support and direction on and off site as needed, 6. Provide waivers of liability for volunteers working on the project, 7. Provide a log for volunteers to enter hours donated to the project. Bernt Ericsen Excavating is responsible for the following work: 1. Install tree protection per design drawings, 2. Move concrete picnic tables to new locations designated by Jefferson County Public Works, 3. Remove existing horse shoe pits, 4. Remove trees and stumps marked for removal and transporting debris, 5. Clear and grub limits of construction, 6. Strip topsoil to depths outlined in the design, 7. Export topsoil off -site, 8. Complete volunteer waivers of liability and time sheets in provided notebook. Page 12 of 12