069-18 - Express Septic Service - ContractCITY OF PORT ORCHARD ORDINARY MAINTENANCE AGREEMENT
THIS Agreement ("Agreement") is made effective as of the 29b day of August, 2018, by and
between the City of Port Orchard, a municipal corporation, organized under the laws of the State of
Washington, whose address is:
CITY OF PORT ORCHARD, WASHINGTON (hereinafter the "CITY")
216 Prospect Street
Port Orchard, Washington 98366
Contact: Mayor Robert Putaansuu Phone: 360.876.4407 Fax: 360.895.9029
and Express Septic Tank Cleaning, a corporation (describe the type of organization, whether
corporation, sole proprietorship, etc.), organized under the laws of the State of Washington, doing
business at:
EXPRESS SEPTIC SERVICE (hereinafter the "VENDOR")
PO Box 1938
Port Orchard, WA 98366
Contact: Randy Oxier Phone: 360.895.5412 Email: expressseptic@hotmail.com
for ordinary maintenance services performed in connection with the following
Sidney Glen Elemenlary School Annual Pumping
TERMS AND CONDITIONS
1. Services by Vendor
A. The Vendor shall perform the services described in the Scope of Work attached to this
Agreement as Exhibit "A." The services performed by the Vendor shall not exceed the Scope of Work
without prior wriffen authorization from the City.
B. The City may from time to time require changes or modifications in the Scope of Work.
Such changes, including any decrease or increase in the amount of compensation, shall be agreed to by
the parties and incorporated in written amendments to the Agreement.
C. This Agreement shall commence on August 29,2018, ("Commencement Date") and shall
terminate December 31,2018, unless extended or terminated in writing as provided herein. Additionally'
the City reserves the rights to review the Agreement at regular intervals to assure the quality of
services provided by the Vendor and to offer two (2) one-year extensions prior to contract
expiration to retain the Vendorts services.
D. Unless otherwise specified in the attached Scope of Work, all tools, equipment, supplies,
chemicals or any other materials necessary for the completion of the services described in the Scope of
Work shall be provided by the Vendor.
City of Port Orchard and Express Septic Services
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E. The Vendor shall repo( any damage or potential hazard involving City property
immediately to the City of Port Orchard Public Works Department or in the case of an emergency by
calling 9ll. Hazardous conditions shall be immediately remedied or secured by the Vendor to prevent
further damage and./or to protect the public from injury.
F. Any incidents, accidents, or altercations with members of the public or with City staff
shall be immediately reported to the City of Port Orchard Public Works Department. The City's Public
Works Director may require a written report describing the incident or accident.
G. The Vendor shall remedy, in a timely manner, and at its expense, any damage to City
property due to the negligence of the Vendor or the Vendor's employees.
2. Schedule of Work.
A. The Vendor shall perform the services described in the scope of work in accordance with
the Schedule attached to this contract as Exhibit "A." If delays beyond the Vendor's reasonable control
occur, the parties will negotiate in good faith to determine whether an extension is appropriate.
B
Proceed.
The Vendor is authorized to proceed with services upon receipt of a written Notice to
3. Compensation.
X LUMP SUM. Compensation for these services shall be a Lump Sum of $2,097.42.
tr TIME AND MATERIALS NoT TO EXCEED. Compensation for these services shall not
exceed $ without written authorization and will be based on billing rates and reimbursable
expenses aftached hereto as Exhibit " ".
I TIME AND MATERIALS. Compensation for these services shalt be on a time and materials
basis according to the list of bilting rates and reimbursable expenses attached hereto as Exhibit
E orHER.
4. Payment.
A. The Vendor shall maintain time and expense records and provide them to the City
monthly after services have been performed, along with monthly invoices in a format acceptable to the
City for work performed to the date of the invoice.
B. All invoices shall be paid by City wanant within thirty (30) days of receipt of a proper
invoice. tf the City objects to all or any portion of any invoice, it shall so notify the Vendor of the same
within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute,
and the parties shall immediately make every effort to settle the disputed portion.
C. The Vendor shatl keep cost records and accounts pertaining to this Agreement available
for inspection by City representatives for three (3) years after final payment unless a longer period is
required by a third-party agreement. Copies shall be made available on request.
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D. lf the services rendered do not meet the requirements of this Agreement, the Vendor will
correct or modify the work to comply with this Agreement. The City may withhold payment for such
work until the work meets the requirements of the Agreement.
5. Discrimination and Compliance with Laws
A. The Vendor agrees not to discriminate against any employee or applicant for employment
or any other person in the performance of this Agreement because of race, creed, color, national origin,
marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or
ordinance, except for a bona fide occupational qualification.
B. Even though the Vendor is an independent contractor with the authority to control and
direct the performance and details of the work authorized under this Agreement, the work must meet the
approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory
completion thereof.
C. The Vendor agrees to comply with all federal, state and municipal laws, rules and
regulations, including but not limited to all health and safety regulations applicable to the work that are
now effective or become applicable within the term(s) of this Agreement to the Vendor's business,
equipment and personnel engaged in operations covered by this Agreement or accruing out of the
performance of such operations. The Vendor shall comply with all federal and state laws applicable to
independent contractors, including, but not timited to, the Washington State Worker's Compensation and
Unemployment Insurance laws, and maintenance of a separate set of books and records that reflect all
items of income and expenses of the Vendor's business, pursuant to Revised Code of Washington (RCW)
51.08.195, as required by law, to show that the services performed by the Vendor under this Agreement
shall not give rise to an employer-employee relationship between the parties, which is subject to Title 5l
RCW, Industrial lnsurance.
D. The Vendor shall comply with prevailing wage requirements under Washington law.
See, Prevailing Wage Addendum to this Agreement.
E. The Vendor shall obtain a City of Port Orchard business license prior to commencing
work pursuant to a written Notice to Proceed'
F. Violation of this Paragraph 5 shall be a material breach of this Agreement and grounds
for cancellation, termination, or suspension of this Agreement by the City, in whole or in palt, and may
result in ineligibility for further work for the City.
6. Relationship of Parties. The parties intend that an independent contractor-client relationship
will be created by this Agreement. As the Vendor is customarily engaged in an independently established
trade which encompasses the specific service provided to the City hereunder, no agent, employee or
representative ofthe Vendor shall be or shall be deemed to be the employee, agent or representative ofthe
City. tn the performance of the work, the Vendor is an independent contractor with the ability to control
ani direct the performance and details of the work, the City being interested only in the results obtained
under this Agreement. None of the benefits provided by the City to its employees, including but not
limited to "ornp"r.ation,
insurance, and unemployment insurance, are available from the City to the
employees, agents or representatives of the Vendor. The Vendor will be solely and entirely responsible
for'its acts and for the acts of its agents, employees, representatives and sub-consultants during the
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performance of this Agreement. The City may, during the term(s) of this Agreement, engage other
independent contractors to perform the same or similar work that the Vendor performs hereunder.
7. Suspension and Termination of Agreement
A. Termination without cause. This Agreement may be terminated by the City at any time
for public convenience, for the Vendor's insolvency or bankruptcy, or the Vendor's assignment for the
benefit ofcreditors.
B. Termination with cause. The Agreement may be terminated upon the default of the
Vendor and the failure of the Vendor to cure such default within a reasonable time after receiving written
notice of the default.
C. Rights Upon Termination.
L With or Without Cause. Upon termination for any reason, all finished or
unfinished documents, reports, or other material or work of the Vendor pursuant to this
Agreement shall be submitted to the City, and the Vendor shall be entitled to just and equitable
compensation for any satisfactory work completed prior to the date of termination, not to exceed
the total compensation set forth herein. The Vendor shall not be entitled to any reallocation of
cost, profit or overhead. The Vendor shall not in any event be entitled to anticipated profit on
work not performed because of such termination. The Vendor shall use its best efforts to
minimize the compensation payable under this Agreement in the event of such termination.
Upon termination, the City may take over the work and prosecute the same to completion, by
contract or otherwise.
2. Default. If the Agreement is terminated for default, the Vendor shall not be
entitled to receive any further payments under the Agreement until all work called for has been
fully performed. Any extra cost or damage to the City resulting from such defautt(s) shall be
deducted from any money due or coming due to the Vendor. The Vendor shall bear any extra
expenses incurred by the City in completing the work, including all increased costs for
completing the work, and all damage sustained, or which may be sustained, by the City by reason
ofsuch default.
D. Suspension. The City may suspend this Agreement, at its sole discretion. Any
reimbursement for expenses incurred due to the suspension shall be limited to the Vendor's reasonable
expenses, and shall be subject to verification. The Vendor shall resume performance of services under
this Agreement without delay when the suspension period ends.
E. Notice of Termination or Suspension. If delivered to the Vendor in person, termination
shall be effective immediately upon the Vendor's receipt of the City's written notice or such date as stated
intheCity'snoticeoftermination,whicheverislater. NoticeofsuspensionshallbegiventotheVendor
in writing upon one week's advance notice to the Vendor. Such notice shall indicate the anticipated
period of suspension. Notice may also be delivered to the Vendor at the address set forlh in Section l4
herein.
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8. Standard ofCare.
The Vendor represents and warrants that it, and the Vendor's employees, have the requisite training, skill
and experience necessary to provide the services under this Agreement and are appropriately accredited
and licensed by all applicable agencies and governmental entities. Services provided by the Vendor and
the Vendor's employees under this Agreement will be performed in a manner consistent with that degree
of care and skill ordinarily exercised by members of the same profession currently practicing in similar
circumstances.
The Vendor and the Vendor's employees shall conduct themselves in a professional manner at all times
when on site. The Vendor's employees shall wear clothing and/or a uniform which clearly identifies
them as an employee of the Vendor.
The Vendor further represents and warrants that it shall provide proper supervision for any employees
utilized to perform the services herein and shall ensure that all employees are properly trained and
qualified. The Vendor shall ensure that all workplace safety requirements of state or federal law are
strictly observed at all times. The Vendor warrants that all employees have been trained to comply with
state and federal standards (including but not limited to standards for handling chemicals, WISHA and
OSHA) relevant to the duties to be performed in accordance with the Scope of Work.
g. Ownership and Use of Documents. All records, files, documents, drawings, specifications, data
or information, regardless of form or format, and all other materials produced by the Vendor in
connection with the services provided to the City, shall be the property of the City whether finished or not
and also whether the project for which they were created is executed or not.
10. Work Performed at the Vendor's Risk. The Vendor shall take all precautions necessary and
shall be responsible for the safety of its employees, agents and representatives in the performance of the
work hereunder, and shall utilize all protection necessary for that purpose. All work shall be done at the
Vendor's own risk, and the Vendor shall be responsible for any loss or damage to materials, tools, or
other articles used or held by the Vendor for use in connection with the work.
11. Indemnification. The Vendor shall defend, indemnify and hold the City, its officers, officials,
employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits,
including all legal costs and attomeys'fees, arising out of or in connection with the performance of this
Agreement, except for injuries and damages caused by the sole negligence of the City. The City's
inspection or acceptance of any of the Vendor's work when completed shall not be grounds to avoid any
of these covenants of indemnification. Nothing in this Agreement shall be construed as creating a
liability or right of indemnification in any third party.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then,
in the event of liability for damages arising out of bodily injury to persons or damages to propefty caused
by or resulting from the concurrent negligence of the Vendor and the City, its officers, officials,
employees, agents and volunteers, the Vendor's liability hereunder shall be only to the extent of the
Vendor's negligence. The provisions of this section shall survive the expiration or termination of this
Agreement.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE VENDOR'S WAIVER OF
IMMLINITY UNDER INDUSTRIAL INSURANCE, TITLE 5I RCW, SOLELY FOR THE PURPOSES
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OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE
MUTUALLY NEGOTIATED THIS WAIVER. THE VE,NDOR'S WAIVER OF IMMLTNITY UNDER
THE PROVISIONS OF THIS SECTION DOES NOT INCLUDE, OR EXTEND TO, ANY CLAIMS BY
THE VENDOR'S EMPLOYEES DIRECTLY AGAINST THE VENDOR.
12. Insurance. The Vendor shall procure and maintain for the duration of this Agreement, insurance
against claims for injuries to persons or damage to property which may arise from or in connection with
the performance of the work hereunder by the Vendor, its agents, representatives, or employees.
A. Minimum Scope of Insurance
Vendor shall obtain insurance of the types described below:
Automobile Liability insurance covering all owned, non-owned, hired and leased
vehicles. Coverage shall be written on Insurance Services Office (lSO) form CA 00
0l or a substitute form providing equivalent liability coverage. lf necessary, the
policy shall be endorsed to provide contractual liability coverage.
2. Commercial General Liability insurance shall be written on ISO occulrence form CG
00 0l or a substitute form providing equivalent liability coverage and shall cover
liability arising from premises, operations, independent contractors and personal
injury and advertising injury. The City shall be named by endorsement as an
additional insured under the Vendor's Commercial General Liability insurance policy
with respect to the work performed for the City.
3. Workers'Compensation coverage as required by the Industrial Insurance laws of the
State of Washington.
4. Professional Liability insurance appropriate to the Vendor's profession if applicable
B. Minimum Amounts of Insurance
Vendor shall maintain the following insurance Iimits:
l. Automobile Liability insurance with a minimum combined single limit for bodily
injury and property damage of $1,000,000 per accident.
2. Commercial General Liabilitv insurance shall be written with limits no less than
$ 1,000,000 each occurrence, $2,000,000 general aggregate.
3. Workers' Compensation Employer's Liability each accident $1,000,000. Employer's
Liability Disease each employee $1,000,000, and Employer's Liability Disease -
Policy Limit $1,000.00.
4. Professional Liability insurance shall be written with limits no less than $1,000,000
per claim and $1,000,000 policy aggregate limit.
C. Other lnsurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions for
Automobile Liability, Professional Liability and Commercial General Liability insurance:
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The Vendor's insurance coverage shall be primary insurance as respect the City.
Any insurance, self-insurance, or insurance pool coverage maintained by the City
shall be excess of the Consultant's insurance and shall not contribute with it.
2. The Vendor's insurance shall be endorsed to state that coverage shall not be
cancelled by either party, except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to the City.
3. The City wilt not waive its right to subrogation against the Vendor. The Vendor's
insurance shall be endorsed acknowledging that the City will not waive its right
to subrogation. The Vendor's insurance shall be endorsed to waive the right of
subrogation against the City, or any self-insurance, or insurance pool coverage
maintained by the City.
4. If coverage is written on a "claims made" basis, then a minimum of a three (3) year
extendedleporting period shall be included with the claims made policy, and proof
of this extended reporting period provided by the City.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII.
E. Verification of Coverage
The Vendor shall furnish the City with original certificates and a copy of the amendatory
endorsements, including but not necessarily limited to the additional insured endorsement,
evidencing the insurance requirements of the Vendor before commencement of the work.
13. Assigning or Subcontracting. The Vendor shall not assign, transfer, subcontract or encumber
any rights, duties, or interests accruing from this Agreement without the express prior written consent of
the City, which consent may be withheld in the sole discretion of the City.
L4. Notice. Any notices required to be given by the City to the Vendor or by the Vendor to the City
shall be in writing and delivered to the parties at the following addresses:
Robert Putaansuu
Mayor
216 Prospect Street
Port Orchard, WA 98366
Phone: 360.876.4407
Fax: 360.895.9029
Express Septic Services
Attn: Randy Oxier
PO Box 1938
Port Orchard, WA 98366
Phone: 360.895.5412
Emai | : expressseptic@hotmail.com
15. Resolution of Disputes and Governing Law.
A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions
contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term
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or provision's true intenl or meaning. The Mayor shall also decide all questions whiclr may arise betrveen
the panies relative to the actual services provided or to the sufficiency of the performance hereunder.
B. lf any dispute arises between the Ciry and the Vendor under any of the provisions of this
Agreement rvhich cannot be resolved by the Mayor's determination in a reasonable time. or if the Vendor
does not agree with the Mayor's decision orr a disputed matter, jurisdiction of any resulting litigation shall
be filed in Kitsap Counry- Superior Court. Kitsap County. Washington.
C' This Agreement shall be governed by and construed in accordance rvith the laws of the
State of Washington. ln any suit or action instituted to enlorce any right granted in this Agreement. the
substantially prevailing party shall be entitled to recover its costs. disbursementr, und reasorrable
attomeys' fees from the other party.
16. General Provisions.
A. Non-waiver of Breach. The failure of either party to insist trpon slrict performance of anyof the covenants and agreements contained herein, or to exercise any option herein ionrained in one or
more instances. shall not be construed to be a waiver or relinquishment of said covenants. agreements, or
options. and the same shall be in full force and ef}-ect.
B. Modification. No waiver, alteration. rnodification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly aurhorized representative of the City
and the Vendor.
C. Severability. The provisions of this Agreement are declared to be severable. lf any
provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or
unconstitutional, such invalidity or unconstitutionality shall not afFect the validiry or constitutionality of
any other provision.
D. Entire Asreement. The written provisions of this Agreement. together with any Exhibits
and Addenda attached hereto. shall supersede all prior verbal statements of any officer or other
representative ofthe City. and such statements shall not be effective or be construed as entering into or
forming a part of or altering in an1' manuer rvhatsoever. the Agreernent or the Agreernent documents. The
entire agreement between the parties with respect to the subject matter hereunder is contained in this
Agreement, the Exhibits and Addenda attached hereto, which may or may not have been dated prior to the
execution of this Agreemenl. All of the above documents are hereby made a part of this Agreement and
form the Agreement document as fully as if the same lvere set forth herein. Should any language in anv
of the Exhibits or Addenda to this Agreement conflict with any language contained in thii,tgreemeni,
then this Agreement shall prevail.
lN WITNESS WHEREOF. the pafties have executed this Agreement on the day and year set
forth above.
EX
By:
Name:
Title:
Robert Putaansuu, Mayor
City of Port Orchard and Express Septic Servrces
Ordinary Maintenance Contract No. C069-18
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CITY OF PORT ORCHARD.
WASHINCTON
PRES VICE
5c iL9-)
By
A TE:
By:
MMC
City Clerk
APPROVED AS TO FORM
By:
Cates, City
City of Port Orchard and Express Septic Services
Ordinary Maintenance Contract No. C069-18
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SEAL
o
Express Septic Tank Cleaning
PO BOX 1938
Port Orchard, WA 98366
360-895-5412
EXHIBIT A Est mate
Name / Address
City Of Pon Orchard
216 Prospect St
Port Orchard. WA 98366
Date Estimate #
8t28t2018 596
Job Address
Sidney Glen Elementry
500 Birch Rd 98367
Description Rate
TruckTime$56T.l2perloadtooffloadtoCitysewerdesignatedsiteperCityofPortOrchard (BASIID
ON LAST YEARS LOADS OF 2)
Septic Pumping (@39.5 Cents Per Gallon to haul ofll-site to Bio Recycling (LAST YEAR GALLONS
TIAULED OFF 2OOO-GAI,LONS)
t,134 24
790.00
Subtotal sl.924.24
Sales Tax (9.0%)$r 73. r8
Total s2.09'7.42
E-mail
expresssepti c@hotmai l. com