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066-09 - Resolution - Contract with Emerald Fire LLC for Annual Backflow Device TestingIntroduced by: Public Works Director Requested by: Public Works Director Drafted by: Public Works Director Introduced: June 23, 2009 Adopted: June 23, 2009 RESOLUTION NO. 066-09 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON AUTHORIZING THE MAYOR TO EXECUTE CONTRACT WITH EMERALD FIRE, LLC FOR ANNUAL BACKFLOW DEVICE TESTING WHEREAS, on June 4, 2009, the City of Port Orchard Public Works Department selected and sent out Request for Proposals (RFP's) to qualified contractors from the Small Works Roster, inviting bids to perform Annual Backflow Device Testing for the fifteen (15) City-owned backflow devices; and WHEREAS, the City of Port Orchard received bids from both firms, being Emerald Fire, LLC and Silverdale Plumbing & Heating, Inc.; and WHEREAS, City Staff has determined that both proposals were responsive and the lowest qualified bidder was Emerald Fire, LLC with a bid of $863.37 (inc. sales tax); now, therefore THE CITY COUNCIL OF THE CITY OF PORT ORCHARD HEREBY RESOLVES AS FOLLOWS: THAT: The City of Port Orchard authorizes the Mayor to execute a contract (Exhibit A incorporated herein by reference) for the 2009 Backflow Device Testing of the fifteen City-owned backflow devices, as required by WAC 246-290-490, with Emerald Fire, LLC in an amount not to exceed $863.37 (inc. sales tax). PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 23rd June 2009. ·~ i ~J .! CITY OF PORT ORCHARD _________________ C_QN_STBUCTJON CONIBAC-T---iC'+ilf¥Y-TD7f~'-il"{·c,::t·,:,if·i-f(3T: ::.'::::+r: .:'cl';;,t::·~:r· ---- Contract No. C037-09 This construction contract is made and entered into this 23rd day of June 2009, by and between the City of Port Orchard, Washington, a municipal corporation (the "City), and Emerald Fire, LLC (the "Contractor"). WHEREAS, the City utilized the Small Works Roster; WHEREAS, the Contractor has been deemed to be the lowest responsible bidder; and NOW, THEREFORE, the parties agree as follows: 1. The following documents are hereby made a part of this construction contract and are mutually cooperative therewith. This construction contract and the following documents are collectively referred to as the "Contract Documents:" A. Public Work Project Terms and Conditions B. Insurance requirements and Bonding C. Bid proposal submitted by the Contractor 2. The Contractor shall do all work and furnish all tools, materials, and equipment in accordance with the above described Construction Contract Documents. 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 constructing and completing of the work provided for in these Construction Contract Documents, except those items mentioned therein to be furnished by the City. 3. Subject to additions and deductions by change order, the construction contract sum is the base bid amount of $863.37 (inc. sales tax.) The construction contract sum shall include all items and services necessary for the proper execution and completion of the work. The City hereby promises and agrees with the Contractor to employ, and does employ the Contractor to provide the materials and to do and cause to be done the work described in the Construction Contract Documents and to complete and finish the same according to the plans and specifications and the terms and conditions herein contained; and hereby contracts to pay for the same at the time and in the manner and upon the conditions provided for in this contract. 4. The Contractor agrees to comply with all state and federal laws relating to the employment of labor and wage rates to be paid. The Contractor agrees to furnish insurance of the types and the amounts set forth in the Construction Contract Documents. 5. The Contractor agrees to repair and replace all property of the City and all -------f}ropef!y-oklthers-Elama~e~mself.;-his-emj:lleyees,--and-sOO-eentraeter·& . .------------ 6. The Contractor for himself and for his heirs, executors, administrators, successors, and assigns, does hereby agree to the full performance of all the covenants herein upon the part of the Contractor. 7. It is further provided that no liability shall attach to the City of Port Orchard by reason of entering into this Construction Contract, except as expressly provided herein. IN WITNESS WHEREOF, the parties hereto have caused this contract to be duly executed on the date first written above. CONTRACTOR By:~;;;,e Its: c_.£.o, APPROVED AS TO FORM: CITY OF PORT ORCHARD ---------PUBliC-WORK PROJBrl-T-ERMS-AN9-GGNBffleNr.:>S------ 1. BID PRICE: The bid price(s) shall include all necessary permits, and fees and items of labor, material, equipment, tools, overhead and compensation, supplies, taxes, utilities and other incidentals necessary to complete the work in a fully functional and operational state. All prices including bid prices are in US funds. 2. DEFINITIONS: The term "City'' means Port Orchard, Washington, "successful bidder'' means the apparent lowest and best bidder to whom an award is made, and "Contractor" means the successful bidder who has satisfied the requirements for the award and who receives a contract executed by the City. "Bidder'' means the person, firm or corporation that has made an offer in response to the invitation to bid. 3. LICENSING AND REGISTRATION: The Contractor must be licensed and registered in the State of Washington. 4. PUBLIC WORK REQUIREMENTS: This project constitutes a public work under state law .. Bidders are warned to take into consideration statutory legal requirements, particularly, the payment of prevailing wages and fringe benefits, payment and performance bonds and sales tax implications in making their bids. It is the sole responsibility of the bidder to insure that the appropriate labor classification(s) are identified and that the applicable wage and benefit rates are taken into consideration when preparing their bid according to these specifications. The Contractor shall complete and file State of Washington, Department of Labor & Industries, Statement of Intent to Pay Prevailing Wages and Affidavit of Wages Paid forms and shall familiarize itself with their requirements. The Contractor shall also be responsible for and pay all costs pertaining to the processing of these forms. 5. INSURANCE REQUIREMENT: The successful bidder will furnish insurance as stipulated in the Attachment entitled "Insurance Requirements." 6. RECEIPT OF ADDENDA: All official clarifications or interpretations of the bid documents will be by written addenda only. 7. PROJECT COMPLIANCE: In compliance with the request for quotation, Bidder hereby proposes to perform all work for this project in strict accordance with the contract documents, at the prices bid and within the time set forth therein with the understanding that time is of the essence in the performance of this contract. 8. TAXES: Proposals shall include all applicable taxes except sales tax which is a separate bid item. It shall be the bidder's responsibility to furnish Federal Excise Tax Exemption Certificate, when applicable. 9. ERROR IN EXTENSION: Unit price, when used, shall govern in case of extension error. 10. PERMITS AND FEES: The contractor shall furnish all permits, inspection fees, and fees required in the performance of this contract, including those charged under RCW 39.12.070 by the Department of Labor and Industries works for the approval of statements of intent to pay prevailing wages and the certification of affidavits of wages paid, etc. The Department may also charge fees to persons or organizations requesting the arbitration of disputes under RCW 39.12.060. The Contractor is responsible for all fees resulting from these statutes. 11. CONTRACT: The Contract, when properly signed, will be the only form which will be ------ff!·, regftired-by~the-Gity-as-an--awar{j;--'fhe-executed-contract--stipersedes--all~previotiR---­ communications and negotiations, except as referenced herein, and constitutes the entire agreement between the City and Contractor (parties), except as provided herein. The Contractor shall not make any changes, alterations, or variations in the terms of the contract without the written consent of the City. No terms stated by the Bidder in its proposal shall be binding on the City unless accepted in writing by the City. The successful bidder may not assign the Contract resulting from this invitation to bid without the City's prior written consent. No waiver by the City of a breach of any provision of the terms and conditions outlined in the invitation to bid shall constitute a waiver of any other breach of such provision or of any other provisions. 12. COMPLIANCE WITH LAWS AND REGULATIONS: The Contractor warrants full compliance with all applicable local, state or federal laws and regulations and agrees to indemnify and defend the City against any loss, cost, liability or damage, including reasonable attorney's fees, by reason of successful bidder's violation of this paragraph. 13. INDEMNIFICATION: All services to be rendered or performed under contract will be rendered or performed entirely at the Contractor's own risk. The Contractor expressly agrees to indemnify and hold harmless the City and all its officers, agents, employees or otherwise from any and all claims, including but not limited to reasonable attorney fees, demands, losses and liabilities to or by third parties arising from, resulting from or connected with the express or implied obligations of the Contractor, its agents or employees under this contract to the fullest extent permitted by law. The Contractor's duty to indemnify the City shall not apply to liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the City, its agents or employees. The Contractor's duty to indemnify the City for liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the concurrent negligence of (a) the City, its agents or employees, and (b) Contractor, its agents or employees shall apply only to the extent of negligence of the Contractor or its agents or employees. Contractor's duty to defend, indemnify and hold the City harmless shall include, as to all claims, demands, losses and liability to which it applies, the City's personnel-related costs, reasonable attorney's fees, court costs and all other claim-related expenses. The Contractor's indemnification shall specifically include all claims for loss liability because of wrongful payments under the Uniform Commercial Code, or other statutory or contractual liens or rights or third parties, including taxes, accrued or accruing as a result of this contract or work performed or materials furnished directly or indirectly because of this contract. Contractor further agrees that this duty to indemnify City applies regardless of any provisions in RCW Title 51 to the contrary, including but not limited to any immunity of Contractor for liability for injuries to Contractor's workers and employees, and Contractor hereby waives any such immunity for the purpose of this duty to indemnify Owner. 14. TERMINATION: This Contract may be terminated in whole or in part, without penalty, under the following conditions: 1) by mutual written agreement; 2) by the City for breach by the Contractor of any of the obligations or requirements set forth in the contract documents which would, at the option of the City, require the Contractor to assume liability for any and all damages, including the excess of re-procuring similar products or services; 3) for convenience of the City; or 4) by the City for non- ------ca"'p"trpm• opriation--ofiand . 15. TERMINATION BY THE CITY WITHOUT CAUSE: Notwithstanding any other provisions contained herein, the City, without cause, may terminate the contract between the parties by providing notice to the Contractor. Upon termination under this section: 1) All remaining obligations of the parties are discharged, but any right based upon breach or performance occurring prior to termination survives; 2) If the reasonable costs of performance incurred by the Contractor prior to termination exceed the amount paid by the City to the Contractor on the Contract Sum, the City shall reimburse the Contractor in the amount of such excess; 3) If the amount paid by the City to the Contractor on the Contract Sum exceeds the reasonable costs of performance incurred by the Contractor prior to termination, the Contractor shall reimburse the City in the amount of such excess; 4) Any funds obtained or retained by the Contractor as provided in subsections 2) or 3), above, shall constitute full payment and consideration for the services performed by the Contractor prior to termination. 16. COMPLIANCE WITH TERMS: The City may at any time insist upon strict compliance with these terms and conditions, not withstanding any previous custom, practice, or course of dealing to the contrary. 17. PAYMENT: Contractor shall maintain time and expense records and provide them to the City along with monthly invoices in a format acceptable to the City for work performed to the date of the invoice. All invoices shall be paid by the City within 45 days of receipt of a proper invoice. If the services rendered to not meet the requirements of the Contract, Contractor will correct or modify the work to comply with the contract. City may withhold payment for such work until work meets the requirements of the Contract. CITY OF PORT ORCHARD -----------INstiRAN0E-REEUIIREMEN"fS------------- Contractor shall furnish and maintain all insurance as required herein (or by attachment) and comply with all limits, terms and conditions stipulated therein (or by that attachment), at their expense, for the duration of the contract. Any exclusions must be pre-approved by the City. Work under this contract shall not commence until evidence of all required insurance and bonding is provided to the City. The Contractor's insurer shall have a minimum A.M. Best's rating of A-and shall be licensed to do business in the State of Washington. The insurance policy or policies will not be canceled, materially changed or altered without forty five (45) days prior notice submitted to the City. The policy shall provide and the certificate shall reflect that the insurance afforded applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the company's liability. The policy shall be endorsed and the certificate shall reflect that the insurance afforded therein shall be primary insurance and any insurance or self-insurance carried by the City shall be excess and not contributory insurance to that provided by the contractor. REQUIRED COVERAGE: The insurance shall provide the minimum coverage as set forth below, all coverage $1 ,000,000.00 per occurrence with no deductible. GENERAL LIABILITY INSURANCE: The Contractor shall have Commercial General Liability with limits of $1 ,000,000.00 per occurrence and at least $1,000,000.00 in the annual aggregate, which includes general aggregate, products, completed operation, personal injury, fire damage and medical expense. ADDITIONAL INSURED ENDORSEMENT: General Liability Insurance must state that the City of Port Orchard, it's officers, agents and employees, and any other entity specifically required by the provisions of the Agreement will be specifically named additional insured(s) for all coverage provided by this policy of insurance and shall be fully and completely protected by this policy from all claims. Language such as the following should be used "CITY OF PORT ORCHARD, ITS OFFICERS, AGENTS AND EMPLOYEES ARE NAMED ADDITIONAL INSURED AS RESPECTS TO PROJECT NUMBER (insert project number here)." PROOF OF BUSINESS AUTOMOBILE INSURANCE: The Contractor shall have Business Automobile Liability with limits of $1 ,000,000.00 combined single limit. WORKERS COMPENSATION: If applicable, the Contractor shall show proof of Worker's Compensation coverage by providing its State Industrial Account Identification Number. Provision of this number will be the Contractor's assurance that coverage is in effect. PROOF OF INSURANCE: The Contractor shall not commence work, nor shall the Contractor allow any subcontractor to commence work on any subcontract until a Certificate of Insurance, meeting the requirements set forth above, has been provided to ----the-6tty;-l:Jpon-reqttest, the Corrtr actor--shall-forward to tire City-the--original-policy;-o·r--- endorsement obtained, to the Contractor's policy currently in force. FAILURE OF COVERAGE: Failure of the Contractor to fully comply with the above insurance requirements during the term or the contract shall be considered a material breach of contract and cause for immediate termination of the contract at the City's discretion. Alternatively the City may procure and maintain, at the Contractor's sole expense, insurance to the extent deemed proper up to the amount of the required coverage(s). The City may offset the cost of such insurance against payment due to the Contractor under this contract. EMERALD FIRE, LLC 11021 Cramer Road KPN, Gig Washington 98329 June 5, 2009 City of Port Orchard Public Works Department 216 Prospect Street Port Orchard, W A 98366 Attention: DJ I Mark Dorsey Ph (253) 857-2056-Fax (253) 857-2312 Reference: City of Port Orchard, Annual Backflow Certification, Port Orchard WA Dear DJ I Mark: Thank you fur the opportunity to quote the ammal baclcflow certification for the City of Port Orohard. The cost breakdcwn is listed below for your review: 1" Backflow RV Dump 2"' Bac\dlow Etta Turner Park 3rd Baekflow City Hall 4rn Backflow CiLy Hall 5~ Backflow City Hall 6j' Baokflow City Hall 7111 Backflow City Hall B''Backflow City Library 9'' Backflow City Library 1 0~ Backflow Pump Station 11 ~ Backflow Pump Station l21b Backflow Pump Station 13'' Backflow Pump Station 14~ Backflow Pump Station 15111 Backflow Pump Station $95.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 $50.00 1q5.ot:\ (0 1U1 c~.!o S~IA>C) .jt 803. 3 'I This proposal assumes that access to all backflow devices will be made available for certification on the same day. Any required repairs will be quoted on a time an.d material basis an.d are not included in this proposal. The certification for the (15) fifteen backflow devices listed will be $795.00, (seven hundred and ninety-flv¢ dollars). Washington State Sales is not included in this proposal and will have to be added ifapplicable.