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AGREEMENT FOR PRIMARY INFLUENT LIFT PUMP REPAIR BETWEEN CITY OF MOSCOW, IDAHO AND BENCHMARK INDUSTRIAL SERVICES THIS AGREEMENT FOR PRIMARY INFLUENT LIFT PUMP REP AIR BETWEEN CITY OF MOSCOW AND BENCHMARK INDUSTRIAL SERVICES is dated the p.s-*R day of Octo 2012 by and between City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"), and Benchmark Industrial Services, 6026 East Baldwin Avenue, Spokane, Washington, 99212 (hereinafter "BENCHMARK") WHEREAS, the CITY is in need of repair to the Siemens Primary Influent Lift Pump ("Pump") currently in use at the Waste Water Treatment Plant ("WWTP"); and WHEREAS, CITY has determined that BENCHMARK has the capabilities of repairing such Primary Influent Lift Pump; and WHEREAS, CITY has determined that BENCHMARK's quote and the conditions of the quote are acceptable; NOW, THEREFORE, the parties to this Agreement, in consideration of the mutual covenants and stipulations set out hereinbelow, agree as follows: ARTICLE 1: BENCHMARK agrees to repair the Siemans Primary Influent Lift Pump as follows: 1. BENCHMARK shall be responsible for the condition of CITY's Siemans Primary Influent Lift Pump from its delivery into the possession of BENCHMARK until it has been reinstalled by BENCHMARK at CITY's WWTP and Pump shall be fully insured for loss and/or damage by BENCHMARK for the entire period of such possession by BENCHMARK. 2. BENCHMARK will inspect the Inside Diameter of Pump tube/housing. 3. CITY will be notified if BENCHMARK encounters difficulties with repair of Pump or unforeseen circumstances. 4. BENCHMARK will replace the Pump trunions, if necessary. 5. BENCHMARK, for an additional fee, will repair the I.D. of the Pump tube, if necessary. 6. If BENCHMARK is unable to complete the work required, the remaining portion of the quoted amount will be applied to the cost of shipment of the Pump to the manufacturer. AGREEMENT- BENCHMARK AND CITY PAGE 1 OF 8 2.012.. ·12. I ---PAGE BREAK--- 7. BENCHMARK will be responsible for any costs associated with loss or damage to the Pump during BENCHMARK's possession of Pump or that occurs to the Pump and/or other CITY property as a result of BENCHMARK's installation of Pump at CITY's WWTP. 8. Delivery by BENCHMARK is eight weeks after receipt of order (ARO). 9. BENCHMARK warrantees the materials and workmanship for one year from start up following installation at CITY's WWTP. 10. BENCHMARK will provide a current Certificate of Insurance demonstrating insurance in amounts sufficient to provide coverage for loss or damage to Pump during BENCHMARK's possession, described in Article 1, Section 1 of this Agreement. ARTICLE 2: Scope of Work BENCHMARK shall complete the entire Scope of Work as specified, indicated and required under the Agreement, as listed herein: 1. Removal, labor and crane 2. Transportation of tube and trunions to Spokane, Washington 3. Machine rollers and trunions, as required, to restore surface 4. Reassemble rollers with new bearings and seals 5. Restore upper bearing and support 6. Transport and reinstall unit at Moscow, Idaho Wastewater Treatment Facility 7. Start-up and adjust to acceptable noise level Labor, materials, transportation and crane rentals ARTICLE 3: CONTRACT TIME I SUBSTANTIAL COMPLETION The work to be performed pursuant to this Agreement shall be substantially complete on or before eight weeks after receipt of order, unless adjustment of this Agreement is made in accordance with the provisions of this Agreement. BENCHMARK shall begin work in conformance with this Agreement and shall complete the work prior to the date of completion. ARTICLE 4: CONTRACT SUM CITY shall pay BENCHMARK for completion of the work in accordance with this Agreement in an amount not to exceed forty two thousand seven hundred forty two dollars ($42,742). Said Contract Sum shall be paid in accordance with this Agreement. AGREEMENT- BENCHMARK AND CITY PAGE2 OF 8 ---PAGE BREAK--- ARTICLE 5: INDEPENDENT CONTRACTOR The parties warrant by their signature that no employer-employee relationship is established between BENCHMARK and CITY the terms of this Agreement. It is understood by the parties hereto that BENCHMARK is an independent contractor and as such neither it nor its employees, agents, representatives or subcontractors, if any, are employees of CITY for purposes of tax, retirement system, or social security (FICA) withholding. ARTICLE 6: HOLD HARMLESS I INDEMNIFICATION In addition to other rights granted CITY by this Agreement, BENCHMARK shall indemnify and save harmless the Engineer and CITY, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damages received or sustained by any person, persons, or property on account of the operations of BENCHMARK or his subcontractors; or on account of or in consequence of any neglect in safeguarding the work; or because of any act or omission, neglect, or misconduct of BENCHMARK or his subcontractors; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims or amounts arising or recovered under the Workmen's Compensation Act or any other law, ordinance, order or decree. ARTICLE 7: CONFLICT OF INTEREST BENCHMARK covenants that it presently has no interest and will not acquire any interest, direct, or indirect, in the project which would conflict in any manner or degree with the performance of its services hereunder. BENCHMARK further covenants that, in performing this Contract, it will employ no person who has any such interest. Should any conflict of interest arise during the performance of this Contract, BENCHMARK shall immediately disclose such conflict to the Project Engineer I Engineer and CITY. ARTICLE 8: ADHERENCE TO LAW REQUIRED All applicable local, state and federal statutes and regulations are hereby made a part of this Agreement and shall be adhered to at all times. Violation of any of these statutes or regulations by BENCHMARK shall be deemed material and shall subject BENCHMARK to termination of this Agreement for cause. No pleas of misunderstanding or ignorance on the part of BENCHMARK will in any way serve to modify the provisions of this requirement BENCHMARK and his surety shall indemnify and save harmless CITY and its employees, agents and representatives against any claim or liability arising from or based on the violation of any such laws, codes, ordinances, or regulations, whether by itself, its employees, or subcontractors. AGREEMENT- BENCHMARK AND CITY PAGE3 OF 8 ---PAGE BREAK--- ARTICLE 9: LEGAL FEES In the event either party incurs legal expenses to enforce the terms and conditions or this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. ARTICLE 10: SPECIAL WARRANTY BENCHMARK warrants that nothing of monetary value has been given, promised or implied as remuneration or inducement to enter into this Contract. BENCHMARK further declares that no improper personal, political or social activities have been used or attempted in an effort to influence the outcome of the competition, discussion, or negotiation leading to the award of this Agreement. Any such activity by BENCHMARK shall make this Agreement null and void. ARTICLE 11: ADDITIONAL TERMS AND CONDITIONS 1. Payment of Invoices. Payments due under this Agreement will be invoiced and shall be due within thirty (30) days of invoice. Interest shall accrue on all unpaid balances from the date due at the rate of one and one-half percent per month. 2. Additional Charges. CITY shall be responsible to pay for amounts in excess of the Agreement price under the following circumstances: a. CITY fails to notify BENCHMARK of scheduling changes affecting BENCHMARK's access to the work site that cause BENCHMARK to incur additional expenses for labor or materials; b. CITY requests work in addition to the work specified in this contract. The charges for such additional work shall be as negotiated between the parties in writing; or any deviation from the following conditions: All prices, scheduling and other terms based on Monday through Friday, straight-time workweek; (ii) When required, shop drawings will be furnished and, when approved by the purchaser or architect, they shall be deemed to be the correct interpretation of design and dimension; (iii) Pricing based on using union millwrights; (iv) Unanticipated standby time due to customer operations, other contractor's work, any industry non standard procedures and/or precautions that result in installation delays, will be billed at BENCHMARK's then current time and materials rate; All electrical work to be done by others and neither the work nor its scheduling is the responsibility of BENCHMARK; (vi) Any excess shimming will be billed as extra; (vii) This quote does not include any applicable taxes, all of which are the responsibility of CITY; (viii) All permits to be provided by others; (ix) All of the terms of this Agreement are incorporated into and must be included in any purchase order or other binding contracts affecting this job; Any changes in the Scope of Work will be quoted separately, or will be billed at BENCHMARK's then-current time and materials rates; (xi) Free and clear access to the work site must be AGREEMENT- BENCHMARK AND CITY PAGE40F 8 ---PAGE BREAK--- provided at all times; and (xii) Identification, scheduling and payment for special inspections will be the CITY's responsibility. Any delays due to these inspections will be billed as extra. 3. Disclaimer of Responsibility. a. BENCHMARK will not be responsible for loss or damage arising from delays caused by lack of correct or complete data; by stenographic errors; by changes or revisions; by late approval of drawings; by fire, floods, strikes, lockouts, riots; by accidents in plant of those furnishing us with materials; by inability to obtain material or skilled labor; by delays of transportation carriers; by acts of God; or by any other causes whatsoever beyond our reasonable control. Should delivery of parts or materials, performance of the work, or any other aspect of the project be delayed by any of the above causes, a reasonable extension of time, not limited to the actual delay, shall be given to complete the work. b. Environmental: BENCHMARK will not be responsible for exposure to contaminants found on the job site. Mitigation for contaminants will be the sole responsibility of the CITY. Others will conduct disposal of contaminated materials unless specifically stated in our signed Agreement. BENCHMARK Industrial Services is not a Licensed Hazardous Material Abatement Contractor. 4. Remedies; Attorney Fees. In the event of any default by CITY, BENCHMARK may exercise any and all remedies available under Idaho law, including, without limitation exercise of any lien rights. In the event of any dispute between the parties requiring the employment of an attorney, the prevailing party in such a dispute shall be entitled to reimbursement of all attorney fees and collection costs, whether or not legal action, either by suit or arbitration, is filed. 5. Warranty of Workmanlike Performance; Exclusion of Warranties. BENCHMARK shall perform the work specified in this proposal in a good and workmanlike manner. Any claims for breach of warranty against BENCHMARK for work performed, including without limitation all labor and materials, must be made in writing and received by BENCHMARK within twelve (12) months of completion of the work or the claims are void and unenforceable. Warranty covers BENCHMARK installation only. All component items are subject to their respective manufacturer's standard warranty all parts proven to be defective due to material, design or workmanship within the manufacturer's allotted guarantee period will be repaired or replaced, FOB the factory or other point of origin.) Such warranty applies only in favor of CITY and not to other parties, and CITY's remedy is limited to repair or replacement of any un workmanlike performance. EXCEPT AS STATED IN THIS PARAGRAPH 5 OF ARTICLE 11, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Except as set forth in this PARAGRAPH 5 OF ARTICLE 11, BENCHMARK shall not be liable for any loss, injury or damages to persons or property resulting from the failure or defective operation of any goods or services furnished or any delay in performance under this contract, including without limitation delays caused by fire, labor disputes, acts of God, materials stolen from the job site or materials or labor shortages, and shall AGREEMENT- BENCHMARK AND CITY PAGES OF 8 ---PAGE BREAK--- not be liable for any direct, indirect, special, incidental, or consequential damages or lost profits of any kind sustained by CITY or others from any cause. The duration of the Warranty shall be twelve (12) months from the date of final acceptance of the equipment. Final acceptance is defined by the date the equipment meets all specifications and start-up requirements following installation, or the date the CITY, its Contractors or Agents proceed to make use of the equipment (whichever date comes first). Warranty coverage is contingent upon the CITY operating and maintaining the equipment in accordance with the manufacturer's recommendations. The Warranty does not cover items ordinarily subject to wear, such as brake linings, or damage/deterioration due to improper operation/use by operators. CITY shall notify BENCHMARK in writing regarding parts failures and/or defects, which occur during the Warranty period. An authorized BENCHMARK representative shall review, evaluate and settle Warranty claims. Warranty claims shall be determined by one of the following methods: a. CITY shall return the part (with proper identification of the part) to the factory or other location as directed. b. Inspection and operation of the equipment by, or under the direction of, a factory representative to determine the cause and nature of the failure. Replacement parts are FOB factory or other place of origin. Warranty extension in case of repeated failure of a specific part and/or assembly during the Warranty period shall be made on that failed part and/or assembly only. Warranty extension following a major breakdown of the equipment during the Warranty period and requiring extensive rework, shall be for the period the equipment is out of service only. 6. Spare Parts Support. If available, a factory recommended list of spare parts will be included in the Operation & Maintenance manuals provided with the installed equipment. BENCHMARK cannot guarantee manufacturer operations, but will make reasonable efforts in ensure that all components and parts will be available from BENCHMARK or the manufacturer for a period of ten (1 0) years following completion period. When ordering, include equipment model, serial number and part number to obtain service. Shop drawings of manufacturer's proprietary components are not available. Factory stock items can normally be shipped with one day's notice. Allow five days for transportation under normal circumstances. Under "Breakdown" conditions, orders are placed with the factory for Rush Shipment Overnight or air shipment is available upon request. 7. Runways/Installations. Duration of Warranty for structural runway fabrications and/or installations shall be twelve (12) months from the date of final acceptance. Final acceptance is defined as the earlier of the date the runway and/or installations meets all CITY specifications, or the date CITY, his Contractors or Agents accept the runway by making use of the runway. 8. Service. Qualified trained personnel are available (portal to portal) twenty four hours a day, seven days a week (24/7), at rates in effect at that time. Standard hourly rates plus travel expenses and subsistence per union contract requirement shall be charged. AGREEMENT- BENCHMARK AND CITY PAGE60F 8 ---PAGE BREAK--- ARTICLE 12: COMMUNICATIONS Such communications as are required by this Agreement shall be satisfied by mailing or by personal delivery to the parties at the following address: BENCHMARK: Tom Shipton Service Center Manager Benchmark Industrial Services 6026 E. Baldwin Ave. Spokane Valley, WA 99212 (509) 570-4244 (cell) [EMAIL REDACTED] ARTICLE 13: CITY: Tom Scallom Water-Wastewater Manager City of Moscow, Idaho 206 East Third Street P 0 Box 9203 Moscow, ID 83843 (208) 883-7107 [EMAIL REDACTED]. id. us ENTIRE AGREEMENT, MODIFICATION AND ASSIGNABILITY This Agreement and the exhibits hereto contain the entire agreement between the parties, and no statements, promises, or inducements made by either party, or agents of either party are valid or binding unless contained herein. This Agreement may not be enlarged, modified or altered except upon written agreement signed by the parties hereto. BENCHMARK may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder other than as contemplated by this Agreement, without the prior written consent and express authorization of CITY. N WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated above. BENCHMARK CITY Benchmark Industrial Services City of Moscow, Idaho AGREEMENT - BENCHMARK AND CITY PAGE 70F 8 ---PAGE BREAK--- STATE OF IDAHO ) ) ss: County of Latah ) ATTEST: ACKNOWLEDGMENT On this J. day of Oc.,e>r , 2012, before me, the undersigned, a Notary in and for said State, personally appeared Tom Shipton, known to me to be the person whose name is subscribed to the foregoing Agreement and acknowledged to me that he executed the same in his capacity as Service Center Manager, authorized representative of Benchmark Industrial Services. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year hereinabove written. AGREEMENT- BENCHMARK AND CITY , . . . , , / t::JWANs'',, y ' . Notary P lie or the State of 0 Residing at tC/l(e ccvc_1 LMe., Moip.! !olARr \ : My commission expires: Q{3 At6 i : ,008\.\V l s 4 0 1 tS' 2 3 n Of PAGE 8 OF 8