HomeMy WebLinkAbout3S FIRE LLC - CP0-FR-33-18-FR - 17022 Regional Burn Buildings Mobile Facility17022 Regional Burn Buildings Project
Mobile Facility for Live Fire Training
Contract No. CPO -FR -33 -18 -FR
Contract Between
CITY OF PASCO
AND
3S FIRE, LLC
This agreement and contract made and entered into this day of '401%' 2018, by
and between the City of Pasco a municipal corporation, hereinafter called tl�e City and 3S Fire, LLC.
hereinafter called the Contractor.
This Contract is for the limited purpose and specific work under the terms and conditions as fully
described herein and does not supersede or replace any other contractual Contract(s), or any terms or
conditions contained therein, that currently exist between the Parties.
NOW, THEREFORE, in consideration of mutual benefits accruing, it is agreed by and between the parties
hereto as follows:
1. Scope of Work. Under this Contract, the Contractor shall provide all labor, materials and equipment
to provide 3 turn -key Mobile Facilities for Live Fire Training for firefighters and rescue personnel serving
to provide Tri Cites Fire Departments.
This Work shall be performed in accordance with City of Pasco Request for Proposal (RFP) entitled
"Mobile Facility for Live Fire Training", and 3S Fire, LLC. Technical Proposal (Volume 1), and the terms
and conditions set forth herein and attached are hereby incorporated by reference:
2. Price. The Price for this Work is $461,550.00 including sales tax. The Price is based on delivery of
the items shown in the table below. The Work described in the RFP, and Technical Proposal shall be
performed on a fixed price basis.
3. Period of Performance. The period of performance is from inception through November 1, 2018.
Inception refers to the date this Contract is fully -executed.
4. Payment Schedule. The following schedule of values shall apply:
Item #
Description
Quantity
Unit Price
Total
1
3 Story Modular Training Facility
1
$225,000
$225,000
2
2 Box Modular Training Facility
2
$100,000
$200,000
Subtotal
$425,000
Sales Tax 8.6%
$36,550
Total Contract Amount
$461,550
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i
5. Key Personnel. The following personnel are named as Key Personnel:
Name
Title
Contact Information
Rich Shrauner Partner Rich@3sfiretraining.com 425-359-6247
Mike Juozapaitis Partner Juice@3sfiretraining.com 425-231-8280
The Contractor shall submit a written request including resumes to the City Fire Chief if proposing to
change Key Personnel under this project. Acceptance will be provided under the Changes C.
6. Warranty. 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 for assembling and
completing the work provided for in this contract and every part thereof and shall guarantee said
materials and work for a period of one year after receipt and acceptance of the Mobile Facility
[Reference RFP Exhibit A - Specification.
7. Notices. Notices to the City of Pasco shall be sent to the following address and addressed to the
attention of Robert Gear, Fire Chief, and a copy of same to Richa Sigdel, Director of Finance:
City of Pasco
P.O. Box 293
Pasco, WA 99301
Notices to the Contractor shall be sent to the following address:
3S Fire LLC.
4916 1231d Street S.E.
Everett, WA 98208
Receipt of any notice shall be deemed effective three days after deposit of written notice in the U.S.
mails, with proper postage and properly addressed.
In witness whereof thearties hereto havgcaus d this agreement to be executed the day and year herein
above written this day of 4VJ! 2018.
The parties acknowledge that there has been an opportunity to negotiate the terms and conditions of
this Contract and agree to be bound accordingly;
CITY OF PASCO
BY: }
Dave ab IIS, City
/M !ag /���
ATTEST:faf�(
Daniela Erickson, City Clerk
Approve to form:
City Attorney
3S FIRE, LLC
41/S/ -p
Contract Si nature
Mike Juozapaitis
By: Printed Name
21 Page
BOND NUMBER: W1314
EXHIBIT D - Performance & Payment Bonds
We 3SFIRE LLC as Principal, and LEXON INSURANCE COMPANY as Surety, jointly
and severally bind ourselves, our heirs, successors and assigns as set forth herein to CITY OF PASCO
(hereinafter called the Owner) for payment of the penal sum of $ 461,550.00 , lawful money of the
United States in connection with the Owner's award to the Contractor of a contract for construction
("Contract') of the following project
MOBILE FACILIIY FOR LIVE FIRE TRAINING
THE CONDITION OF THIS OBLIGATION IS SUCH that if the Contractor shall in all respects faithfully
perform all obligations and provisions in the said Contract, and pay all laborers, mechanics,
subcontractors , materialmen, taxing authorities and all persons who supply such person or persons or
subcontractors with material, equipment and supplies for the carrying on of such work, this obligation
shall become null and void; otherwise, it shall remain In full force and effect, and Surety shall defend and
indemnify Owner against any loss or damage due to the failure of the Principal to strictly perform all
obligations of the Contract.
This bond shall be enforced until completion of the project and acceptance by the Owner, and for such
period thereafter during which the law allows claims to be filed and sued upon.
This bond is provided pursuant to and In compliance with R.C.W. Chapter 39.08, the terms and
requirements of which statute are incorporated herein as though fully set forth.
Surety agrees that no change, extension of time, modifications, or addition to the terms of the Contract, or
the work to be performed thereunder, or to the specifications shall in any way affect its obligation on this
bond, and it hereby waives notice thereof.
The Contractor and Surety agree that if the Owner is required to engage the services of an attorney in
connection with the enforcement of this bond, each shall be jointly and severally liable to pay the Owner
reasonable attorneys' fees, costs and expenses incurred, with or without suit, in addition to the penal
SUM.
Surety certifies that it is an authorized surety bond Issuer, properly authorized to transact surety business
In Washington. Surety agrees to be bound by the laws of the State of Washington and subject itself to the
jurisdiction of the courts of the State of Washington.
Executed in original counterparts on MARCH 27 20 18 .
LLC
(Attach aclmowletigment of authorized representative of Contractor)
Any claims under this bond made In accordance with R.C.W 39.06 may be addressed to:
LEXON INSURANCE COMPANY (Name and address of Surety)
155 NE 100TH STREET, SUITE 201
SEATTLE, WA 98125
City of Pasco - Request for Proposal Page 16 of 42
Regional Burn Buildings - Mobile Facility for Live Fire Training
TOP INSURANCE ASSOCIATES LLC
1053019TH AVE SE ST 101
EVERETT, WA 98208-4282
(Name and address of Surety's agent for service of
process in Washington If different from above)
(425) 338-0275 (Telephone No. of Surety's Washington agent)
(Attach acknowledgment) LEXON INSURANCE COMPANY
Surety
_._.._ Berta
yGREG A NEAULT
Its Attorney -In -Fact
A#
NOTICE
Sureties must be authorized to conduct surety business in Washington and have an agent for service of
process in Washington. Certified copy of Power of Attorney must be attached.
City of Pasco - Request for Proposal Page 17 of 42
Regional Burn Buildings - Mobile Facility for Live Fire Training
EXHIBIT D — Performance & Payment Bonds
PERFORMANCE BOND
BOND TO THE CITY OF PASCO
KNOW ALL MEN BY THESE PRESENTS:
BOND NUMBER: 9821314
That we, the undersigned, 3SFIRE LLC
as principal, and LEXON INSURANCE COMPANY a TEXAS corporation
organized and existing under the laws of the State of Washington, as a surety corporation, and qualified
under the laws of the State of Washington to become surety upon bonds of contractors with Municipal
Corporations, as surety, are jointly and severally held and firmly bound to the City of Pasco in the penal
SUM of FOUR HUNDRED SUM ONETHOUWJDFIVE HUNDRED RMAND 00110%($461,550001 for the payment of which sum
on demand we bind ourselves and our successors, heirs, administrators or personal representatives as
the case may be.
This obligation is entered into a pursuance of the statutes of the State of Washington, and ordinances of
the City of Pasco.
Dated at 044W17 , Washington, this day of M4L64 2018.
Nevertheless, the conditions of the above obligation are such that:
WHEREAS, pursuant to action taken by the City Council of the City on 2018, the Mayor
and City Clerk of the City of Pasco have let or are about to let to the said
3SFIRE LLC , the above bounden principal, a certain contract, the same contract
being numbered PROJECT # CPO -FR -33 -18 -FR and providing for REGIONAL BURN
BUILDINGS (which contract is referred to herein and is made a part hereof as though attached hereto.)
WHEREAS, the said principal has accepted, or is about to accept the said contract, and undertake to
perform the work wherein provided for in the manner and within the time set forth.
NOW, THEREFORE, if the said 35FIRE LLC shall faithfully perform all of the
provisions of said contract In the manner and within the time therein set forth, or within such
extensions of the time as may be granted under the contract, and shall pay all laborers, mechanics,
subcontractors, and material men, and all persons who shall supply said principal or subcontractors with
provisions and supplies for the carrying on of said work, and shall indemnity and hold said City of Pasco
harmless from any loss or damage occasioned to any person or property by reason of any carelessness
or negligence on the part of said principal, or any subcontractor in the performance of said work, and
shall indemnify and hold the City of Pasco harmless from any damage or expense by reason or failure of
performance as specified in said contract or from defects appearing or developing in the material or
workmanship provided or performed under said contract after its acceptance thereof by the City of
Pasco, then and in that event this obligations shall be void; but otherwise It shall be and remain in full
force and effect.
Approved as tp•For
Surety IktXON INSURANCE COMPANY
GREG ARSENEAULT, ATTORNEY-IN-FACT
✓ 41Z- c/u0 *J
City of Pasco - Request for Proposal Page 18 of 42
Regional Burn Buildings - Mobile Facility for Live Fire Training
POWER OF ATTORNEY
Lexon Insurance Company
KNOW ALL MEN BY THESE PRESENTS, that LEXON INSURANCE
Louisville, Kentucky, does hereby constitute and appoint GREG ARSENEAULI
true and lawful Attorney(s)-lin-Fact to make, execute, seal and deliver for
PER RMANCESPAYMENTWND under bond or undertal
ssrnE uc as principal In the penal sum t
U(_9821314
COMPANY, a Texas Corporation, with its principal office in
and on its behalf as surety, and as its ad and deed a
ig number 9821314 issued on behalf of
$ 461,550.00
This authority is made render and by the authority of a resolution which was passed by the Board of Directors of LEXON INSURANCE
COMPANY on the 1'i day of July, 2003 as follows:
Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of Bre Company or other
person or persons as Attomey-In-Fad to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other
writings obligatory in nature of a bond not to exceed $ 461,550.00 dollars, which the Company might execute through its duly
elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney -In -Fad shall be as binding
upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney -in -
Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney.
Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney
granted, and the signature of the Assistant Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such
power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such
power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which R is attached,
continue to be valid and binding on the Company.
IN WITNESS THEREOF, LEXON INSURANCE COMPANY has caused this Instrument to be signed by its President, and its Corporate
Seal to be affixed this 5th day of August, 2015.
ACKNOWLEDGEMENT
LEXON INSURANCE COMPANY
BY
Da id E. ampbetl - l
President
On this 5th day of August, 2015, before me, personally came David E. Campbell to me known, who be duly swom, did depose and say
that he Is the President of LEXON INSURANCE COMPANY, the corporation described in and which executed the above instrument: that he
executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation.
AMY TAYLOR
Notary Public -State of Tennessee BY
Davidson County AmyFaylor
^ My Cission Exoires 0l -Ca -19 NCta Public
omm
CERTIFICATE
I, the undersigned, Assistant Secretary of LEXON INSURANCE COMPANY, A Texas Insurance Company, DO HEREBY CERTIFY
that the original Power of Attorney of which the forgoing is a We and correct copy, is in full force and effect and has not been revoked and the
resolutions as set forth are now in force.
Signed and Said at Mount Juliet, Tennessee this 27TH Day of w�cN , 2018
BY t
Andrew Smith
Assistant Secretary
'WARNING. Any person who knowingly and with Intent to defraud any insurance company or other person, files and application for Insurance of
claim Containing any materially false Information, or conceals for the purpose of misleading, Information concerning any fact material thereto,
commits a fraudulent Insurance act, which is a gime and subjects such person to criminal and civil penalties."
Contract Provisions
City of Pasco
Regional Burn Buildings
Mobile Facility for Live Fire Training
Contract No. CPO -FR -33 -18 -FR
SECTIONONE.......................................................................................................................................8
STANDARD TERMS AND CONDITIONS..............................................................................................8
1.1
Contract Modifications................................................................................................................8
1.2
Changes.....................................................................................................................................8
1.3
Contractor Payment...................................................................................................................8
1.4
Pricing........................................................................................................................................8
1.5
Contractor Qualifications and Requirements.............................................................................8
1.6
Contractor Certifications (If Applicable).....................................................................................9
1.7
Prevailing Wages.....................................................................................................................10
1.8
Delivery Requirements.............................................................................................................10
1.9
Taxes, Fees and Licenses.......................................................................................................10
1.10
Quality Assurance....................................................................................................................13
1.11
Information and Communications............................................................................................14
1.12
General Provisions...................................................................................................................15
1.13
Insurance.................................................................................................................................18
1.14
Industrial Insurance Coverage.................................................................................................19
1.15
Nondiscrimination.....................................................................................................................21
1.16
Laws Applicable Under Federally -Assisted Projects...............................................................21
1.17
OSHA and WISHA Requirements............................................................................................22
1.18
Waiver......................................................................................................................................22
1.19
Disputes and Remedies...........................................................................................................23
1.20
Contract Termination................................................................................................................25
6 1 P a g e
SECTION ONE
STANDARD TERMS AND CONDITIONS
This section contains standard terms and conditions that apply under any resultant purchase
order hereinafter called "Contract" issued by the City of Pasco hereinafter called "City" to the
Bidder hereinafter called "Contractor".
1.1 CONTRACT MODIFICATION
The City reserves the right to modify any Contract issued subsequent to this RFP (including but
not limited to adding or deleting products, services, or delivery locations) by mutual agreement
between the City and the Contractor, so long as such modification is substantially within the
scope of the original Contract. Such modifications will be evidenced by issuance of a written
authorized amendment by the City.
1.2 CHANGES
Alterations to any of the terms, conditions, or requirements of resultant Contract shall only be
effective upon written issuance of a mutually agreed Contract Modification issued by the City.
However, changes to point of contact information may be updated without the issuance of a
mutually agreed Contract Modification.
1.3 CONTRACTOR PAYMENT
Unless mutually agreed upon dictating otherwise, invoices will not be processed for payment
until receipt of a properly completed invoice, and invoiced items are received and accepted.
Each invoice shall include: Company Name, Invoice Date, Due Date (30 days), Invoice Number,
City of Pasco Contract Number and Item Number(s), Quantity, Unit Price and Extended
Amount, Under Lump Sum the Contractor is eligible for payment upon successful delivery of
systems and training, minus any retainage due if required. Contractor shall invoice 50% of Item
1 & 2 upon Notice to Proceed.
Net 30 days shall apply to all invoices. Payment(s) made in accordance with contract terms
shall fully compensate the Contractor for all risk, loss, damages, or expense of whatever nature
and acceptance of payment shall constitute a waiver of all claims submitted by Contractor.
1.4 PRICING
No additional charges
Unless otherwise specified in the Solicitation, no additional charges by the Contractor will be
allowed including, but not limited to: handling charges such as packing, wrapping, bags,
containers, reels; or the processing fees associated with the use of credit cards.
Notwithstanding the foregoing, in the event that market conditions, laws, regulations or other
unforeseen factors dictate, at the City's sole discretion, additional charges may be allowed.
1.5 CONTRACTOR QUALIFICATIONS AND REQUIREMENTS
Established business
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Prior to commencing performance, or prior to that time if required by the City, law or regulation,
Contractor must be an established business firm with all required licenses, fees, bonding,
facilities, equipment and trained personnel necessary to meet all requirements and perform the
work as specified in the RFP. Contractor shall maintain compliance with these requirements
throughout the life of any resultant Contract to this RFP. The Contractor shall not subcontract
any part of the work
The City reserves the right to require receipt of proof of compliance with said requirements
within ten (10) calendar days from the date of request, and to terminate any resultant Contract
to this RFP as a material breach for noncompliance with any requirement of this paragraph.
1.6 CONTRACTOR CERTIFICATIONS (IF APPLICABLE)
Contractor must provide evidence upon request by City, of its status as an authorized service
and/product reseller. If this reseller status is discontinued, resultant Contract may be terminated
as set forth elsewhere herein. Contractor shall maintain its reseller status for the initial term and
any renewals of the resulting Contract.
The Bidder shall not have a record of prevailing wage violations as determined by WA Labor &
Industries in the five years prior to the bid submittal date, that demonstrates a pattern of failing
to pay workers prevailing wages, unless there are extenuating circumstances and such
circumstances are deemed acceptable to the Contracting Agency.
b. a. Use of subcontractors (if applicable)
In accordance with RFP requirements, Contractor agrees to take complete responsibility
for all actions of such Subcontractors.
Prior to performance, Contractor shall identify all subcontractors who will perform
services in fulfillment of contract requirements, including their name, the nature of
services to be performed, address, telephone, facsimile, email, federal tax identification
number (TIN), and anticipated dollar value of each subcontract:
The City reserves the right to approve or reject any and all Subcontractors that identified
by the contractor. Any Subcontractors not listed in the Bidder's Response, who are
engaged by the Contractor; must be pre -approved, in writing, by the City.
c. Subcontracts and assignment
Contractor shall not Subcontract, assign, or otherwise transfer its obligations under
resultant Contract without the prior written consent of the City. Contractor shall provide
timely advance notification of intent to Subcontract, assign, or otherwise transfer its
obligations under any resultant Contract to this RFP. Violation of this condition may be
considered a material breach establishing grounds for Contract termination. The
Contractor shall be responsible to ensure that all requirements of the resultant Contract
shall flow down to any and all Subcontractors. In no event shall the existence of a
Subcontract operate to release or reduce the liability. of Contractor to the state for any
breach in the performance of the Contractor's duties.
cl. Materials and Workmanship
The Contractor shall be required to furnish all materials, supplies, equipment and/or
services necessary to perform Contractual requirements. Materials, supplies and
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workmanship used in the construction of equipment for resultant Contract shall conform
to all applicable federal, state, and local codes, regulations and requirements for such
equipment, specifications contained herein, and the normal uses for which intended.
Materials, supplies and equipment shall be manufactured in accordance with the best
commercial practices and standards for this type of materials, supplies, and equipment.
1.7 Prevailing Wages
Included in RFP documents - Attachment 7-1 (1) See General Conditions
1.8 DELIVERY REQUIREMENTS
1. Order fulfillment requirements
a. Upon the request of the City, the Contractor shall supply City with manufacturer's list
pricing or other documentation needed to verify resultant Contract pricing
compliance.
b. Product damaged prior to acceptance will either be replaced or repaired in an
expedited manner at contractor's expense.
c. Alternatively, at the City's option, any possible damage to the product can be noted
on the receiving report and the cost deducted from final payment.
d. The Contractor is responsible to verify delivery conditions/requirements with the City
prior to the delivery.
2. Shipping and Risk of Loss
Contractor shall ship all Products purchased pursuant to resultant Contract, freight
prepaid, FOB City's destination [or other applicable shipping requirements]. The method
of shipment shall be consistent with the nature of the Products and hazards of
transportation. Regardless of FOB point, Contractor agrees to bear all risks of loss,
damage, or destruction of the Products ordered hereunder that occurs prior to Delivery
Date or Acceptance, whichever is applicable, except loss or damage attributable to City's
fault or negligence; and such loss, damage, or destruction shall not release Contractor
from any obligation hereunder. After Delivery Date or Acceptance, whichever is
applicable, the risk of loss or damage shall be borne by the City, except loss or damage
attributable to Contractor's fault or negligence.
3. Delivery
Delivery must be made during City's normal work hours and within time frames either
required in the Solicitation, or if requested in the RFP, proposed by Contractor in its
Proposal and subsequently accepted by the City.
Failure to comply with agreed upon delivery times may subject Contractor to liquidated
or other damages. The City may refuse shipment when delivered after normal working
hours. The acceptance by the City of late performance, with or without objection or
reservation by the City, shall not waive the right to claim damage for such breach, nor
preclude the City from pursuing any other remedy provided herein, including termination,
nor shall such acceptance of late performance constitute a waiver of the requirements
for the timely performance of any obligation remaining to be performed by Contractor.
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All deliveries are to be made to the applicable delivery location as indicated in the
resultant Contract. When applicable, the Contractor shall take all necessary actions to
safeguard items during inclement weather. In no case shall the Contractor initiate
performance prior to receipt of written or authorization from the City.
Expenses incurred otherwise shall be borne solely by the Contractor.
Site Security
While on City's premises, Contractor, its agents, employees, or Subcontractors shall
conform in all respects with physical, fire, or other security regulations.
4. Inspection and Rejection
The City's inspection of all materials, supplies and equipment upon delivery is for the
purpose of forming a judgment as to whether such delivered items are what was
ordered, were properly delivered and ready for Acceptance. Such inspection shall not
be construed as final acceptance, or as acceptance of the materials, supplies or
equipment, if the materials, supplies or equipment does not conform to contractual
requirements. If there are any apparent defects in the materials, supplies, or equipment
at the time of delivery, the City will promptly notify the Contractor.
Without limiting any other rights, the City may require the Contractor to: (1) repair or
replace, at Contractor's expense, any or all of the damaged goods; (2) refund the price
of any or all of the damaged goods; or (3) accept the return of any or all of the damaged
goods.
AND, IF APPLICABLE,
The City reserves the right to independently test, at supplier's expense, any product of
questionable freshness, quality, or origin delivered against resultant Contract.
5. Installation (if applicable)
Installation shall be performed in a professional manner in accordance with industry
standard best practices. The premises shall be left in a clean condition. The City
reserves the right to require Contractor to repair all damages or provides full
compensation as determined by the City.
6. Title to Product (if applicable)
Upon Acceptance, or upon delivery, if there is no Acceptance requirement, Contractor
shall convey to City good title to the Product free and clear of all liens, pledges,
mortgages, encumbrances, or other security interests.
Transfer of title to the Product shall include an irrevocable, fully paid-up, perpetual
license to use the internal code (embedded software) in the Product. If City subsequently
transfers title to the Product to another entity City shall have the right to transfer the
license to use the internal code with the transfer of Product title. A subsequent transfer
of this software license shall be at no additional cost or charge to either City or City's
transferee.
7. Treatment of assets
a. Title to all property furnished by the City shall remain in the City, as appropriate. Title
to all property furnished by the Contractor, the cost for which the Contractor is
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entitled to be reimbursed as a direct item of cost under any resultant Contract, shall
pass to and vest in the City upon delivery of such property by the Contractor and
Acceptance by the City. Title to other property, the cost of which is reimbursable to
the Contractor under resultant Contract, shall pass to and vest in the City upon (i)
issuance for use of such property in the performance of resultant Contract, or (ii)
commencement of use of such property in the performance of resultant Contract, or
(iii) reimbursement of the cost thereof by the City in whole or in part, whichever first
occurs.
b. Any property of the City furnished to the Contractor shall, unless otherwise provided
herein or approved by the City, be used only for the performance under any resultant
Contract.
c. The Contractor shall be responsible for damages as a result of any loss or damage
to property of the City which results from the negligence of the Contractor or which
results from the failure on the part of the Contractor to maintain, administer and
protect that property in a reasonable manner and to the extent practicable in all
instances.
d. If any of the City property is lost, destroyed, or damaged, the Contractor shall
immediately notify the City and shall take all reasonable steps to protect the property
from further damage.
e. The Contractor shall surrender to the City all property of the City prior to settlement
upon completion, termination, or cancellation of resultant Contract.
f. All reference to the Contractor under this clause shall also include Contractor's
employees, agents or Subcontractors.
8. Labeling
Individual shipping cartons shall be labeled with 1 he name of the ordering agency, order
number, contract number, contractor, state stock numbers, and where applicable, date
of manufacture, batch number, storage requirements, conditions, and recommended
shelf life. Contractors are encouraged to offer product packaging with recycled content.
9. Hazardous Materials
"Right to know" legislation requires the Department of Labor and Industries to establish a
program to make employers and employees more aware of hazardous substances in
their work environment. Implementing Chapter 296 -839 WAC requires that all
manufacturers and distributors of hazardous substances, including any of the items
listed in resultant Contract, must include a complete material safety data sheet (MSDS)
for each hazardous material. Additionally, each container of hazardous materials must
be appropriately labeled with:
a) The identity of the hazardous material,
b) Appropriate hazard warnings, and
c) Name and address of the chemical manufacturer, importer, or other responsible
party
Labor and Industries may levy appropriate fines for noncompliance and agencies may
111PagF
withhold payment -pending receipt of a Legible copy of MSDS. It should be noted that
OSHA Form 20 is not acceptable in lieu of this requirement unless it is modified to
include appropriate information relative to "carcinogenic ingredients" and "routes of
entry" of the product(s) in question.
1.9 TAXES, FEES AND LICENSES
1. Taxes:
Where required by statute or regulation, the Contractor shall pay for and maintain in
current status all taxes that are necessary for Contract performance. Unless otherwise
indicated, the City agrees to pay State of Washington taxes on all applicable: materials,
supplies, services and/or equipment purchased. No charge by the Contractor shall be
made for federal excise taxes and the City agrees to furnish Contractor with an
exemption certificate where appropriate.
2. Collection of Retail Sales and Use Taxes:
In general, Contractors engaged in retail sales activities within the State of Washington
are required to collect and remit sales tax to Department of Revenue (DOR). In general,
out-of-state Contractors must collect and remit "use tax." to Department of Revenue if
the activity carried on by the seller in the State of Washington is significantly associated
with Contractor's ability to establish or maintain a market for its products in Washington
State.
3. Department of Revenue Registration for Out -of -State Contractors:
Out-of-state Contractors meeting any of the above criteria must register and establish an
account with the Department of Revenue. Refer to WAC 458-20-193, and call the
Department of Revenue at 800-647-7706 for additional information. When out-of-state
Contractors are not required to collect and remit "'use tax" the City is responsible for
paying this tax, if applicable, directly to the Department of Revenue.
4. Fees/Licenses:
After award of any resultant Contract to this RFP, and prior to commencing performance
under the Contract, the Contractor shall pay for and maintain in a current status any
licenses, fees, assessments, permit charges, etc., which are necessary for Contract
performance. It is the Contractor's sole responsibility to maintain licenses and to monitor
and determine any changes or the enactment of any subsequent regulations for said
fees, assessments, or charges and to immediately comply with said changes or
regulations during the entire term of resultant Contract.
5. Customs/Brokerage Fees:
Contractor shall take all necessary actions, including, but not limited to, paying all
customs, duties, brokerage and/or import fees, to ensure that materials, supplies, and/or
equipment purchased under the Contract are expedited through customs.
Failure to do so may subject Contractor to liquidated damages as identified herein
and/or to other remedies available by law or Contract. The City will not incur additional
costs related to Contractor's payment of such fees.
6. Taxes on Invoice:
Contractor shall calculate and enter the appropriate Washington State and local sales
tax on all invoices. Tax is to be computed on new items after deduction of any trade-in
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in accordance with WAC 458-20-247.
7. Overpayments to contractor
Contractor shall refund to City the full amount of any erroneous payment or overpayment
under resultant Contract within thirty (30) days' written notice. If Contractor fails to make
timely refund, City may charge Contractor one percent (1%) per month on the amount
due, until paid in full.
8. Contractor expenses (if applicable)
The bidder is responsible for all travel and other expenses as identified in the RFP, or as
authorized in writing in advance by City in accordance with the then current rules and
regulations set forth in the Washington State Administrative and Accounting Manual
(hftp://www.ofm.wa.gov/policy/poltoc.htm).
9. Audits
The City reserves the right to audit, or have a designated third party audit, applicable
records to ensure that the City has been properly invoiced. Any remedies and penalties
allowed by law to recover monies determined owed will be enforced. Incorrect invoicing
may be considered complete cause for contract termination.
1.10 QUALITY ASSURANCE
1. Right of Inspection
Contractor shall provide right of access to its facilities to the City, or any of City's officers,
or to any other authorized agent or official at all reasonable times, in order to monitor
and evaluate performance, compliance, and/or quality assurance under resultant
Contract.
2. Contractor Commitments, Warranties and Representations
Any written commitment by Contractor within the scope of resultant Contract shall be
binding upon Contractor. Failure of Contractor to fulfill such a commitment may
constitute breach and shall render Contractor liable for damages under the terms of
resultant Contract. For purposes of this section, a commitment by Contractor includes:
(i) Prices, discounts, and options committed to remain in force over a specified period of
time; and (ii) any warranty or representation made by Contractor in its Response or
contained in any Contractor or manufacturer publications, written materials, schedules,
charts, diagrams, tables, descriptions, other written representations, and any other
communication medium accompanying or referred to in its Response or used to effect
the sale to City.
3. Warranties
Contractor warrants that all materials, supplies, services and/or equipment provided
under resultant Contract shall be fit for the purpose(s) for which intended, for
merchantability, and shall conform to the requirements and specifications herein.
Acceptance of any materials, supplies, service and/or equipment, and inspection
incidental thereto, by the City shall not alter or affect the obligations of the Contractor or
the rights of the City.
4. Cost of Remedy
Cost of Remedying Defects: All defects, indirect and consequential costs of correcting,
removing or replacing any or all of the defective materials or equipment will be charged
against the Contractor.
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1.11 INFORMATION AND COMMUNICATIONS
Advertising
Contractor shall not publish or use any information concerning resultant Contract in any
format or media for advertising or publicity without prior written consent from the
Contract Administrator.
2. Retention of Records
The Contractor shall maintain all books, records, documents, data and other evidence
relating to any resultant Contract and the provision of materials, supplies, services
and/or equipment described herein, including, but not limited to, accounting procedures
and practices which sufficiently and properly reflect all direct and indirect costs of any
nature expended in the performance of resultant
Contract. Contractor shall retain such records for a period of six (6) years following the
date of final payment. At no additional cost, these records, including materials generated
under the Contract, shall be subject at all reasonable times to inspection, review, or audit
by the City, personnel duly authorized by the City, the Washington State Auditor's Office,
and federal and state officials so authorized by law, regulation or agreement.
If any litigation, claim or audit is started before the expiration of the six (6) year period,
the records shall be retained until final resolution of all litigation, claims, or audit findings
involving the records.
3. Proprietary or confidential information
To the extent consistent with Chapter 42 .56 RCW, the Public Disclosure Act, the City
shall maintain the confidentiality of Contractor's information marked confidential or
proprietary. If a request is made to view Contractor's proprietary information, the City will
notify Contractor of the request and of the date that the records will be released to the
requester unless Contractor obtains a court order enjoining that disclosure. If Contractor
fails to obtain the court order enjoining disclosure, the City will release the requested
information on the date specified.
The City's sole responsibility shall be limited to maintaining the above data in a secure
area and to notify Contractor of any request(s) for disclosure for so long as the City
retains Contractor's information on record. Failure to so label such materials or failure to
timely respond after notice of request for public disclosure has been given shall be
deemed a waiver by Contractor of any claim that such materials are exempt from
disclosure.
4. Non -endorsement and publicity
The City does not endorse the Contractor's Products or Services, nor suggests that they
are the best or only solution to their needs. Contractor agrees to make no reference to
the City in any literature, promotional material, brochures, sales presentation or the like,
regardless of method of distribution, without the prior review and express written consent
of the City.
5. Ownership/Rights in Data
City and Contractor agree that all data and work products (collectively called "Work
Product") produced pursuant to resultant Contract shall be considered work made for
hire under the U.S. Copyright Act, 17 U.S.C. §101 et seq, and shall be owned by City.
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Contractor is hereby commissioned to create the Work Product.
Work Product includes, but is not limited to discoveries, formulae, ideas, improvements,
inventions, methods, models, processes, techniques, findings, conclusions,
recommendations, reports, designs, plans, diagrams, drawings, Software, databases,
documents, pamphlets advertisements, books, magazines, surveys, studies, computer
programs, films, tapes, and/or sound reproductions, to the extent provided by law.
Ownership includes the right to copyright, patent, register and the ability to transfer these
rights and all information used to formulate such Work Product.
If for any reason the Work Product would not be considered a work made for hire under
applicable law, Contractor assigns and transfers to City the entire right, title and interest
in and to all rights in the Work Product and any registrations and copyright applications
relating thereto and any renewals and extensions thereof.
Contractor shall execute all documents and perform such other proper acts as City may
deem necessary to secure for City the rights pursuant to this section.
Contractor shall not use or in any manner disseminate any Work Product to any third
party, or represent in any way Contractor ownership in any Work Product, without the
prior written permission of City. Contractor shall take all reasonable steps necessary to
ensure that its agents, employees, or Subcontractors shall not copy or disclose, transmit
or perform any Work Product or any portion thereof, in any form, to any third party.
Material that is delivered under resultant Contract, but that does not originate there from
("Preexisting Material"), shall be transferred to City with a nonexclusive, royalty -free,
irrevocable license to publish, translate, reproduce, deliver, perform, display, and
dispose of such Preexisting Material, and to authorize others to do so except that such
license shall be limited to the extent to which Contractor has a right to grant such a
license. Contractor shall exert all reasonable effort to advise City at the time of delivery
of Preexisting Material furnished under resultant Contract, of all known or potential
infringements of publicity, privacy or of intellectual property contained therein and of any
portion of such document which was not produced in the performance of resultant
Contract Contractor agrees to obtain, at its own expense, express written consent of the
copyright holder for the inclusion of Preexisting Material. City shall receive prompt
written notice of each notice or claim of copyright infringement or infringement of other
intellectual property right worldwide received by Contractor with respect to any
Preexisting Material delivered under resultant Contract. City shall have the right to
modify or remove any restrictive markings placed upon the Preexisting Material by
Contractor.
6. Protection of Confidential and Personal Information
Contractor acknowledges that some of the material and information that may come into
its possession or knowledge in connection with resultant Contract or its performance
may consist of information that is exempt from disclosure to the public or other
unauthorized persons under either Chapter 42.17 RCW or other state or federal statutes
("Confidential Information"). Confidential Information includes, but is not limited to,
names, addresses, Social Security numbers, e-mail addresses, telephone numbers,
financial profiles, credit card information, driver's license numbers, medical data, law
enforcement records, agency source code or object code, agency security data, etc. or
information identifiable to an individual that relates to any of these types of information.
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Contractor agrees to hold Confidential Information in strictest confidence and not to
make use of Confidential Information for any purpose other than the performance of
resultant Contract, to release it only to authorized employees or Subcontractors requiring
such information for the purposes of carrying out resultant Contract, and not to release,
divulge, publish, transfer, sell, disclose, or otherwise make the information known to any
other party without City's express written consent or as provided by law. Contractor
agrees to release such. information or material only to employees or Subcontractors who
have signed a nondisclosure agreement, the terms of which have been previously
approved by City. Contractor agrees to implement physical, electronic, and managerial
safeguards to prevent unauthorized access to Confidential Information.
"Personal information" including, but not limited to, "Protected Health Information "(PHI)
under Health Insurance Portability And Accountability Act (HIPAA), individuals' names,
addresses, phone numbers, birth dates, and social security numbers collected, used, or
acquired in connection with resultant Contract shall be protected against unauthorized
use, disclosure, modification or loss. HIPAA establishes national minimum standards for
the use and disclosure of certain health information. The Contractor must comply with all
HIPAA requirements and rules when determined applicable by the City. If City
determines that (1) City is a "covered entity" under HIPAA, and that (2) Contractor will
perform "business associate" services and activities covered under HIPAA, then at City's
request, Contractor agrees to execute City's business associate Contract in compliance
with HIPAA.
Contractor shall ensure its directors, officers, employees, Subcontractors or agents use
personal information solely for the purposes of accomplishing the services set forth
herein. Contractor and its Subcontractors agree not to release, divulge, publish,
transfer, sell or otherwise make known to unauthorized persons' personal information
without the express written consent of the Agency or as otherwise required by law.
Any breach of this provision may result in termination of the Contract and demand for
return of all personal information. The Contractor agrees to indemnify and hold
harmless the State of Washington and the City for any damages related to both: (1) the
Contractor's unauthorized use of personal information and (2) the unauthorized use of
personal information by unauthorized persons as a result of Contractor's failure to
sufficiently protect against unauthorized use, disclosure, modification, or loss.
Contractor shall maintain a log documenting the following: the Confidential Information
received in the performance of resultant Contract; the purpose(s) for which the
Confidential Information was received; who received, maintained and used the
Confidential Information; and the final disposition of the Confidential Information.
Contractor's records shall be subject to inspection, review or audit in accordance with
Retention of Records.
City reserves the right to monitor, audit, or investigate the use of Confidential Information
collected, used, or acquired by Contractor through resultant Contract. The monitoring,
auditing, or investigating may include, but is not limited to, salting databases.
Violation of this section by Contractor or its Subcontractors may result in termination of
resultant Contract and demand for return of all Confidential Information, monetary
damages, or penalties.
Immediately upon expiration or termination of resultant Contract, Contractor shall, at
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City's option: (i) certify to City that Contractor has destroyed all Confidential Information;
or (ii) return all Confidential Information to City; or (iii) take whatever other steps City
requires of Contractor to protect City's Confidential Information.
1.12 GENERAL PROVISIONS
1. Governing Law/Venue
Any resultant Contract to this RFP shall be construed and interpreted in accordance
"With the laws of the State of Washington, and the venue of any action brought
hereunder shall be in the Superior Court for Franklin County.
2. Severability
Severability: If any provision of resultant Contract or any provision of any document
incorporated by reference shall be held invalid, such invalidity shall not affect the other
provisions of resultant Contract that can be given effect without the invalid provision, and
to this end the provisions of resultant Contract are declared to be severable.
3. Survivorship
All transactions executed for Products and Services provided pursuant to the authority of
resultant Contract shall be bound by all of the terms, conditions, Prices and Price
discounts set forth herein, notwithstanding the expiration of the initial term of resultant
Contract or any extension thereof. Further, the terms, conditions and warranties
contained in resultant Contract that by their sense and context arc intended to survive
the completion of the performance, cancellation or termination of resultant Contract shall
so survive. In addition, the terms of the sections titled Overpayments to Contractor;
Ownership/Rights in Data; Contractor's Commitments, Warranties and Representations;
Protection of City's Confidential Information; Section Headings, Incorporated Documents
and Order of Precedence; Publicity; Retention of Records; Patent and Copyright
Indemnification; Contractor's Proprietary information; Disputes and Limitation of Liability
shall survive the termination of resultant Contract.
4. Immunity and hold harmless
To the fullest extent permitted by law, Contractor shall indemnify, defend and hold
harmless City and all officials, agents and employees of the City, from and against all
claims for injuries, death or damage to property arising out of or resulting from the
performance of the contract. Contractor's obligation to indemnify, defend, and hold
harmless includes any claim by Contractors' agents, employees, representatives, or any
subcontractor or its employees.
Contractor expressly agrees to indemnify, defend, and hold harmless the City for any
claim arising out of or incident to Contractor's or any subcontractor's performance or
failure to perform the contract Contractor shall be required to indemnify, defend, and
hold harmless the City only to the extent claim is caused in whole or in part by negligent
acts or omissions of Contractor.
Contractor waives its immunity under Title 51 to the extent it is required to indemnity,
defend and hold harmless the City and its agencies, officials, agents or employees.
5. Personal liability
It is agreed by and between the parties hereto that in no event shall any official, officer,
employee or agent of the City when executing their official duties in good faith, be in any
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way personally liable or responsible for any agreement herein contained whether
expressed or implied, nor for any statement or representation made herein or in any
connection with this agreement.
1.13 INSURANCE
1. General Requirements:
Contractor shall, at their own expense, obtain and keep in force insurance as follows
until completion of the Contract. Upon request, Contractor shall furnish evidence in the
form of a certificate of insurance satisfactory to the City that insurance, in the following
kinds and minimum amounts, has been secured. Failure to provide proof of insurance,
as required, will result in Contract cancellation.
Contractor shall include all Subcontractors as insureds under all required insurance
policies, or shall furnish separate Certificates of Insurance and endorsements for each
Subcontractor. Subcontractor(s) must comply fully with all insurance requirements stated
herein. Failure of Subcontractor(s) to comply with insurance requirements does not limit
Contractor's liability or responsibility.
All insurance provided in compliance with resultant Contract shall be primary as to any
other insurance or self-insurance programs afforded to or maintained by the state.
2. Specific Requirements:
Employers Liability (Stop Gap): The Contractor will 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 will maintain
Employers Liability insurance with a limit of no less than $ 1,000,000.00. The City will not
be held responsible in any way for claims filed by the Contractor or their employees for
services performed under the terms of resultant Contract.
Commercial General Liability Insurance: The Contractor shall at all times during the term
of resultant Contract, carry and maintain commercial general liability insurance and if
necessary, commercial umbrella insurance for bodily injury and property damage arising
out of services provided under resultant Contract. This insurance shall cover such claims
as may be caused by any act, omission, or negligence of the Contractor or its officers,
agents, representatives, assigns, or servants.
The insurance shall also cover bodily injury, including disease, illness and death, and
property damage arising out of the Contractor's premises/operations. independent
Contractors. products/completed operations, personal injury and advertising injury, and
contractual liability (including the tort liability of another assumed in a business
Contract), and contain separation of insured's (cross liability) conditions.
Contractor waives all rights against the City for the recovery of damages to the extent
they are covered by general liability or umbrella insurance.
The limits of liability insurance shall not be less than as follows:
General Aggregate Limits (other than products -completed operations) $2,000,000
Products -Completed Operations Aggregate $2,000,000
Personal and Advertising Injury Aggregate $1,000,000
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Each Occurrence (applies to all of the above) $1,000,000
Fire Damage Limit (per occurrence) $50,000
Medical Expense Limit (any one person) $5,000
3. Business Auto Policy (HAP):
In the event that services delivered pursuant to resultant Contract involve the use of
vehicles, or the transportation of clients, automobile liability insurance shall be required.
The coverage provided shall protect against.claims for bodily injury, including illness,
disease, and death; and property damage caused by an occurrence arising out of or in
consequence of the performance of this service by the Contractor, Subcontractor, or
anyone employed by either.
Contractor shall maintain business auto liability and, if necessary, commercial umbrella
liability insurance with a combined single limit not less than $1,000,000 per occurrence.
The business auto liability shall include Hired and Non -Owned coverage.
Contractor waives all rights against the City for the recovery of damages to the extent
they are covered by business auto liability or commercial umbrella liability insurance.
4. Additional Insurance Provisions:
All above insurance policies shall include, but not be limited to, the following provisions:
Additional Insured:
The City shall be named as an additional insured on all general liability, umbrella,
excess, and property insurance policies. All policies shall be primary over any other
valid and collectable insurance.
Notice of Policvties) Cancellation/Non-renewal:
For insurers subject to Chapter 48.18 RCW (Admitted and regulated by the Washington
State Insurance Commissioner) a written notice shall be given to the Fire Chief Robert
Gear or Fire Captain Ryan Scellick forty-five (45) calendar days prior to cancellation or
any material change to the policy(ies) as it relates to resultant Contract. Written notice
shall include the affected Contract reference number.
5. Surplus Lines:
For insurers subject to Chapter 48. 15 RCW (Surplus Lines) a written notice shall be
given to the City twenty (20) calendar days prior to cancellation or any material change
to the policy(ies) as it relates to resultant Contract Written notice shall include the
affected Contract reference number.
Cancellation for Non-payment to Premium:
If cancellation on any policy is due to non-payment of premium, a written notice shall be
given to the Fire Chief Robert Gear or Fire Captain Ryan Scellick ten (10) calendar days
prior to cancellation. Written notice shall include the affected Contract reference number.
Identification:
Policy(ies) and Certificates of Insurance shall include the affected Contract reference
number.
6. Insurance Carrier Rating;
The insurance required above shall be issued by an insurance company authorized to
do business within the State of Washington. Insurance is to be placed with a carrier that
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has a rating of A- Class VII or better in the most recently published edition of Best's
Reports. Any exception must be reviewed and approved by the Washington Cities
Insurance Agency, by submitting a copy of the Contract and evidence of insurance
before Contract commencement. If an insurer is not admitted, all insurance policies and
procedures for issuing the insurance policies must comply with Chapter 48. 15 RCW and
Chapter 284- 15 WAC.
7. Excess Coverage:
The limits of all insurance required to be provided by the Contractor shall be no less than
the minimum amounts specified. However, coverage in the amounts of these minimum
limits shall not be construed to relieve the Contractor from liability in excess of such
limits.
8. Limit Adjustments:
The City reserves the right to increase or decrease limits as appropriate.
1.14 INDUSTRIAL INSURANCE COVERAGE
The Contractor shall comply with the provisions of Title 51 RCW Industrial Insurance. If the
Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on
behalf of its employees as may be required by law, the City may terminate resultant Contract.
This provision does not waive any of the Washington State Department of Labor and Industries
(L&I) rights to collect from the Contractor.
1.15 NONDISCRIMINATION
During the performance of resultant Contract, the Contractor shall comply with all applicable
federal and state nondiscrimination laws, regulations and policies, including, but not limited to:
• Title VI of the Civil Rights Act of 1964 (P.L. 88-352)
• Title IX of the Education Amendments of 1972, as amended (20 U.S.C. Sections 1681-
1683 and 1685-1686
• Section 504 of the Rehabilitation Act of 1973 as amended (29 U.S.C. Section 794)
• Age Discrimination Act of 1975 as amended (42 U.S>C. Sections 6101-6107)
• Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255)
• Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation
Act of 1970 (P.L. 91-616)
• 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. 290 dd-3 & 290 cc -3)
• Title VII of the Civil Rights Act 42 U.S.C. section 12101 at. seq.; the Americans with
Disabilities Act (ADA); and, Chapter 49.60 RCW, Discrimination -Human Rights
Commission.
1.16 LAWS APPLICABL E UNDER FEDERALLY -ASSISTED PROJECTS
This project is subject to federal financial assistance under Grant EMW-2011-FR-00370 issued
by U.S Department of Homeland Security, Federal Emergency Management Agency (FEMA).
is therefore required that the Contractor comply with the following statutes:
• As applicable, Davis -Bacon Act (40 U.S.C. 276a to 276a-7) as supplemented by
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Department of Labor regulations (29 CFR Part 5)
• Copeland Act "Anti -Kickback Act' (18 U.C.X. 874) as supplemented in Department of
Labor regulations (29 CFR Part 3)
• As applicable, Contract Work Hours & Safety Standards Act (40 U.S.C. Section 327-
330) as supplemented by Department of Labor regulations (29 CFR Part 5)
• Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity"
as amended by Executive Order 11375 of October 13, 1967, and as supplemented in
Department of Labor regulations (41 CFR chapter 60) (All construction contracts awarded
in excess of $10,000 by grantees and their contractors or sub -grantees)
• Executive Order 12689 and Executive Order 12549 Debarment, Suspension &
Ineligibility (Contracts in excess of $2,000)
1.17 OSHA AND WISHA REQUIREMENTS
Contractor agrees to comply with conditions of the Federal Occupational Safety and Health
Administration (OSHA) and, if manufactured or stored in the Slate of Washington, the
Washington industrial Safety and Health Act (WISHA) and the standards and regulations issued
there under, and certifies that all items furnished and purchased will conform to and comply with
said laws, standard and regulations.
Contractor further agrees to indemnify and hold harmless the City from all damages assessed
against City as a result of Contractor's failure to comply with those laws, standards and
regulations, and for the failure of the items famished under resultant Contract.
1.18 WAIVER
Failure or delay of the City to insist upon the strict performance of any term or condition of the
Contract or to exercise any right or remedy provided in the Contract or by law; or the City's
acceptance of or payment for materials, supplies, services and/or equipment, shall not release
the Contractor from any responsibilities or obligations imposed by resultant Contract or by law,
and shall not be deemed a waiver of any right of the City to insist upon the strict performance of
the entire agreement by the Contractor. In the event of any claim for breach of Contract against
the Contractor, no provision of resultant Contract shall be construed, expressly or by implication,
as a waiver by the City of any existing or future right and/or remedy available by law.
1.19 DISPUTES AND REMEDIES
1. Problem resolution and disputes
Problems arising out of the performance of resultant Contract shall be resolved in a
timely manner at the lowest possible level with authority to resolve such problem. If a
problem persists and cannot be resolved, it may be escalated within each organization.
In the event a bona fide dispute concerning a question of fact arises between the City
and Contractor and it cannot be resolved between the parties through the normal
problem escalation processes, either party may initiate the dispute resolution procedure
provided herein. The dispute shall be handled by a Dispute Resolution Panel in the
following manner. Each party to resultant Contract shall appoint one member to the
Panel. These two appointed members shall jointly appoint an additional member. The
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Dispute Resolution Panel shall review the facts, Contract terms and applicable statutes
and rules and make a determination of the dispute as quickly as reasonably possible.
The determination of the Dispute Resolution Panel shall be final and binding on the
parties hereto. The City and Contractor agree that, the existence of a dispute
notwithstanding, they will continue without delay to carry out all their respective
responsibilities under resultant Contract that are not affected by the dispute.
In the event a bona fide dispute concerning a question of fact arises between the City
and Contractor and it cannot be resolved between the parties through the normal
escalation processes, either party may initiate the dispute resolution procedure provided
herein.
The initiating party shall reduce its description of the dispute to writing and deliver it to
the responding party. The responding party shall respond in writing within three (3)
Business Days. The initiating party shall have three (3) Business Days to review the
response. If after this review a resolution cannot be reached, both parties shall have
three (3) Business Days to negotiate in good faith to resolve the dispute. If the dispute
cannot be resolved after three (3) Business Days, a Dispute Resolution Panel may be
requested in writing by either party who shall also identify the first panel member. Within
three (3) Business Days of receipt of the request, the other party will designate a panel
member. Those two panel members will appoint a third individual to the Dispute
Resolution Panel within the next three (3) Business Days.
The Dispute Resolution Panel will review the written descriptions of the dispute, gather
additional information as needed, and render a decision on the dispute in the shortest
practical time.
Each party shall bear the cost for its panel member and share equally the cost of the
third panel member.
Both parties agree to be bound by the determination of the Dispute Resolution Panel.
Both parties agree to exercise good faith in dispute resolution and to settle disputes prior
to using a Dispute Resolution Panel whenever possible.
The City and Contractor agree that the existence of a dispute notwithstanding, they will
continue without delay to carry out all their respective responsibilities under resultant
Contract that are not affected by the dispute.
If the subject of the dispute is the amount due and payable by City for materials,
supplies, services and/or equipment being provided by Contractor, Contractor shall
continue providing materials, supplies, services and/or equipment pending resolution of
the dispute provided City pays Contractor the amount City, in good faith. believes is due
and payable, and places in escrow the difference between such amount and the amount
Contractor, in good faith, believes is due and payable.
2. Administrative Suspension
When it in the best interest of the City, the City may at any time, and without cause,
suspend the Contract or any portion thereof for a period of not more than thirty (30)
calendar days per event by written notice to the Contractor's Representative. Contractor
shall resume performance on the next business day following the 30th day of
suspension unless an earlier resumption date is specified in the notice of suspension. If
no resumption date was specified in the notice of suspension, the Contractor can be
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demanded and required to resume performance within the 30 -day suspension period
providing the Contractor's Representative with written notice of such demand.
3. -Force Majeure
The term "force majeure" means an occurrence that causes a delay that is beyond the
control of the party affected and could not have been avoided by exercising reasonable
diligence. Force majeure shall include acts of God, war, riots, strikes. fire, floods,
epidemics, or other similar occurrences.
Exceptions: Except for payment of sums due, neither party shall be liable to the other or
deemed in breach under resultant Contract if and to the extent that, such party's
performance of resultant Contract is prevented by reason of force majeure.
Notification: If either party is delayed by force majeure, said party shall provide written
notification within forty-eight (48) hours. The notification shall provide evidence of the
force majeure to the satisfaction of the other party. Such delay shall cease as soon as
practicable and written notification of same shall likewise be provided. So far as
consistent with the Rights Reserved below, the time of completion shall be extended by
Contract amendment for a period of time equal to the time that the.results or effects of
such delay prevented the delayed party from performing in accordance with resultant
Contract.
Rights Reserved: The City reserves the right to authorize an amendment to resultant
Contract, terminate the Contract, and/or purchase materials, supplies, equipment and/or
services from the best available source during the time of force majeure, and Contractor
shall have no recourse against the City.
4. Alternative Dispute Resolution Fees and Costs
In the event that the parties engage in arbitration, mediation or any other alternative
dispute resolution forum to resolve a dispute in lieu of litigation, both parties shall share
equally in the cost of the alternative dispute resolution method, including cost of
mediator or arbitrator. In addition, each party shall be responsible for its own attorneys'
fees incurred as a result of the alternative dispute resolution method.
5. Non -Exclusive Remedies
The remedies provided for in resultant Contract shall not be exclusive but are in addition
to all other remedies available under law.
1.20 CONTRACT TERMINATION
1. Material Breach
A Contractor may be Terminated for Cause by the City, at sole discretion of the Fire
Chief, for failing to perform a contractual requirement or for a material breach of any
term or condition. Material breach of a term or condition of the Contract may include but
is not limited to:
a. Contractor failure to perform services or deliver materials, supplies, or equipment
by the date required or by an alternate date as mutually agreed in a written
amendment to the Contract;
b. Contractor failure to carry out any warranty or fails to perform or comply with any
mandatory provision of the contract;
c. Contractor becomes insolvent or in an unsound financial condition so as to
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endanger performance hereunder;
d. Contractor becomes the subject of any proceeding under any law relating to
bankruptcy, insolvency or reorganization, or relief from creditors and/or debtors
that endangers the Contractor s proper performance hereunder;
e. Appointment of any receiver, trustee, or similar official for Contractor or any of
the Contractor's property and such appointment endangers the Contractor's
proper performance hereunder;
f. A determination that the Contractor is in violation of federal, state, or local laws or
regulations and that such determination renders the Contractor unable to perform
any aspect of the Contract.
Opportunity to Cure:
In the event that Contractor fails to perform a contractual requirement or materially
breaches any term or condition, the City may issue a written cure notice. The Contractor
may have a period of time in which to cure. The City is not required to allow the
Contractor to cure defects if the opportunity for cure is not feasible as determined solely
within the discretion of the City. Time allowed for cure shall not diminish or eliminate
Contractor's liability for liquidated or other damages, or otherwise affects any other
remedies available against Contractor under the Contract or by law.
If the breach remains after Contractor has been provided the opportunity to cure, the
City may do any one or more of the following:
a. Exercise any remedy provided by law;
b. Terminate resultant Contract and any related Contracts or portions thereof;
c. Procure replacements and impose damages asset forth elsewhere in resultant
Contract;
d. Impose actual or liquidated damages;
e. Suspend or bar Contractor from receiving future Solicitations or other
opportunities;
f. Require Contractor to reimburse the City for any loss or additional expense
incurred as a result of default or failure to satisfactorily perform the terms of the
Contract.
3. Termination for Cause
In the event the Fire Chief, in his sole discretion, determines that the Contractor has
failed to comply with the conditions of resultant Contract in a timely manner or is in
material breach, the City has the right to suspend or terminate resultant Contract, in part
or in whole. The City shall notify the Contractor in writing of the need to make corrective
action. If corrective action is not taken within thirty (30) calendar days or as otherwise
specified by the City, or if such corrective action is deemed by the City to be insufficient,
the Contract may be terminated. The Fire Chief reserves the right to suspend all or part
of the Contract, withhold further payments, or prohibit the Contractor from incurring
additional obligations of funds during investigation of the alleged breach and pending
corrective action by the Contractor or a decision by the Fire Chief to terminate the
Contract.
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In the event of termination, the City shall have the right to procure for any or all
replacement materials, supplies, services and/or equipment that are the subject of
resultant Contract on the open market. In addition, the Contractor shall be liable for
damages as authorized by law including, but not limited to, any price difference between
the original contract and the replacement or cover contract and all administrative costs
directly related to the replacement contract, e.g., cost of the competitive bidding, mailing,
advertising and staff time.
If it is determined that: (1) the Contractor was not in material breach; or (2) failure to
perform was outside of Contractor's or its Subcontractor's control fault or negligence, the
termination shall be deemed to be a "Termination for Convenience". The rights and
remedies of the City provided herein are not exclusive and are in addition to any other
rights and remedies provided by law.
5. Termination for Convenience
Except as otherwise provided in resultant Contract, the City at the sole discretion of the
Fire Chief, may terminate resultant Contract, in whole or in part by giving thirty (30)
calendar days or other appropriate time period written notice beginning on the second
day after mailing to the Contractor. If resultant Contract is so terminated, the City shall
be liable only for payment required for supplies and/or equipment delivered to and
Accepted by the City prior to the effective date of Contract termination. The City shall not
have any other obligation whatsoever to the Contractor for such termination.
4. Termination Procedure
Upon termination of any resultant Contract, the City may require the Contractor to deliver
to the City any property specifically produced or acquired for the performance of such
part of resultant Contract as has been terminated. Procedures are described as follows;
The City shall pay to the Contractor the agreed upon price, if separately stated, for
completed work and service(s) accepted by the City, and the amount agreed upon by
the Contractor and the City for (i) completed materials, supplies, services rendered
and/or equipment for which no separate price is stated, (ii) partially completed materials,
supplies, services rendered and/or equipment (iii) other materials, supplies, services
rendered and/or equipment which are accepted by the City, and (iv) the protection and
preservation of property, unless the termination is for cause, in which case the City shall
determine the extent of the liability of the City. Failure to agree with such determination
shall be a dispute within the meaning of the "Disputes" clause within the resultant
Contract. The City may withhold from any amounts due the Contractor such sum as the
City determines to be necessary to protect the City against potential loss or liability.
The rights and remedies of the City provided in this section shall not be exclusive and are
in addition to any other rights and remedies provided by law or within the resultant
Contract.
After receipt of a termination notice, and except as otherwise expressly directed in
writing by the City, the Contractor shall:
a. Stop all work, order fulfillment, shipments, and deliveries under the Contract on
the date, and to the extent specified, in the notice;
b. Place no further orders or subcontracts for materials, services, supplies,
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equipment and/or facilities in relation to the Contract except as is necessary to
complete or fulfill such portion of the Contract that is not terminated;
c. Complete or fulfill such portion of the Contract that is not terminated in
compliance with all contractual requirements;
d. Assign to the City, in the manner, at the times, and to the extent directed by the
City, all of the rights, title, and interest of the Contractor under the orders and
subcontracts so terminated, in which case the City has the right, at its discretion,
to settle or pay any or all claims arising out of the termination of such orders and
subcontracts.
e. Settle all outstanding liabilities and all claims arising out of such termination of
orders and subcontracts, with the approval or ratification of the City to the extent
the City may require which approval or ratification shall be final for all the
purposes of this clause;
f. Transfer title to the City and deliver in the manner, at the times, and to the extent
directed by the City any property which, if the contract had been completed,
would have been required to be furnished to the City;
g. Take such action as may be necessary or as directed by the City for the
protection and preservation of the property related to resultant Contract which is
in the possession of the Contractor and in which the City has or may acquire an
interest.
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