Loading...
HomeMy WebLinkAbout1 - Original Submission_ MFP 5 Year Agreement Golden Eagle DRAFT version 2 with legal editsAGREEMENT FOR THE SALE OF MINOR FOREST PRODUCTS THIS IS A CONTRACT for the sale of minor forest products made and entered into this _____ day of __________________, 2022 by and between the City of Bremerton, hereinafter “City” and I.E.F. Corporation - Golden Eagle Evergreens, hereinafter “Contractor”, referred to collectively as “Parties”. WHEREAS, the purpose of this contract is to provide harvest and sale of salal, huckleberry and Western Red Cedar, Western White Pine, and Douglas Fir boughs (“minor forest products”) from selected Bremerton Water Utility lands to the Contractor, the City grants permission to the Contractor to enter upon certain property owned by the City as shown on Exhibit “A” attached hereto and made a part hereof for the limited purpose of harvesting these minor forest products. NOW THEREFORE, in consideration of the terms and conditions contained therein, and attached and incorporated and made a part thereof, the City and Contractor mutually agree that the Contractor shall provide harvest and payment for minor forest products to the City as follows: I. Scope. Contractor shall provide all performance of work for minor forest products harvest, marketing, and payment for harvested volume to the City, including all labor, materials, transportation, equipment, supplies, and services necessary for and reasonably incidental to the completion of all work as set out in the scope of work, which is attached as Exhibit B and incorporated herein by reference. II. Term. The term of this agreement commences on July 1, 2022 and terminates on June 30, 2027, unless terminated earlier pursuant to Section X of this Agreement. Upon expiration of the term, the Parties may agree in writing to extend this Agreement for successive one-year terms, with substantially the same terms and conditions except those set forth in Exhibit C, which may be negotiated based upon fair market value. III. Payment. The Contractor agrees to pay the City according to the terms and at a time and in a manner provided for in the payment schedule attached as Exhibit C and incorporated herein by reference. The payment schedule contained in Exhibit C may be periodically modified by mutual consent of the parties based on market and harvest conditions. The Contractor shall make its harvest volume records available for inspection upon written request of the City. IV. Relationship of Parties: Contractor represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of expertise. Contractor and its personnel are independent Contractors and not employees of the City. Contractor and its personnel have no authority to bind the City or to control the City’s employees and other Contractors. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub-Contractors of the Contractor. Contractor will be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, representatives and sub-Contractors during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent Contractors to perform the same or similar work. As an independent Contractor, Contractor is responsible for its own management. The City’s administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Contractor or its personnel. V. Licenses & Taxes. Contractor shall possess a current Bremerton Business License and regulatory licenses required to fulfil Contractor’s obligations under this Agreement. As an independent Contractor, Contractor is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. These taxes and fees include but are not limited to State industrial insurance, Business & Occupation, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared delinquent, the City may withhold DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02 the delinquent amount, plus any additional charges arising from the delinquency, from any payments due Consultant. VI. Indemnification. Contractor 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 attorney fees, arising out of or in connection with the performance of this Agreement, except for that portion of the injuries and damages caused by the City's sole negligence. The City's review or acceptance of any of the work when completed shall not be grounds to avoid any of these covenants of indemnification. 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 property caused by or resulting from the concurrent negligence of the Contractor and the City, its officers, officials, employees, agents and volunteers, the Contractor’s liability hereunder shall be only to the extent of the Contractor's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONTRACTOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. VII. Insurance: The Contractor shall procure and maintain for the duration of the 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 Contractor, its agents, representatives, employees, sub-consultants or sub-Contractors. Before beginning work on the project described in this Agreement, the Contractor shall provide a Certificate of Insurance evidencing: Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability; and Excess Liability insurance with limits not less than $1,000,000 limit per occurrence and aggregate. Any payment of deductible or self-insured retention shall be the sole responsibility of the Contractor. All required policies shall be provided on an “occurrence” basis except professional liability insurance (if required), which may be provided on a “claims-made” basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Contractor and a copy of an endorsement that is acceptable to the City, which names the City as an additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies and endorsements. The City further reserves the right to reject any unacceptable policies and/or endorsements. DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02 The Contractor's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. The Contractor's insurance shall be primary insurance as respects the City and the City shall be given thirty (30) days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. VIII. General Conditions: A. Restrictions Entry Exceptions. No entry shall be allowed in the vicinity of water intakes, wellhead protection zones, or the Bremerton Police Range, unless authorized by the Forestry staff. No entry shall be allowed during Industrial Fire Precaution Levels (IFPLs) of III or higher. No entry shall be allowed during an “Imminent Threat” Alert as issued by the U.S. Department of Homeland Security’s National Terrorism Advisory System (NTAS). Contractor shall be responsible for checking the status of the above entry levels. No entry shall be allowed during inclement weather when vehicular travel on forest roads has the potential for damaging roads, streams, and wetlands. Access. Contractor is allowed entry for the above express purpose only and is allowed ingress and egress to specified work locations only by the most direct route. Harvesting and removal operations shall not cause damage to water courses, soils, roads, standing timber or reforested areas. No cedar products or other merchantable material other than those specifically named, shall be cut or taken. Fire Precautions. No smoking on Water Utility forest lands. No open fires at any time. All other closed season regulations as defined by the State of Washington regulations that pertain to this operation shall be observed. Firearms. No firearms are allowed in Contractor’s possession or in Contractor’s vehicle(s) while on Water Utility lands. Roads. Contractor employees must respect posted road conditions including road closures. If a road is posted closed, access is not allowed. During the wet season, 4-wheel drive is required and must be engaged while traveling between Road 4240 and Road 4245. B. Reports & Information. When requested by the City, Contractor shall furnish periodic reports and documents on matters covered by this Agreement. The reports and documents shall be furnished in the time and form requested. Contractor shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP). DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02 C. Entire Agreement. This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement. D. Severability. Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. E. Modification. This Agreement may only be modified by written instrument signed by both Parties. F. Written Notices: All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1st class mail, or by personal service, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. City Address: Contractor Address: Forestry Division Manager I.E.F. Corporation Bremerton Public Works & Utilities Golden Eagle Evergreens 100 Oyster Bay Ave. N 870 W Golden Pheasant Rd Bremerton, WA 98312 Shelton, WA 98584 IX. Equal Employment Opportunity Statement: In the hiring of employees for the performance of work under this Agreement, the Consultant, its subcontractors, or any person acting on behalf of Consultant shall not discriminate in any employment practice on the basis of age (40+), sex, race, creed, color, national origin, sexual orientation/gender identity, marital status, military status, or the presence of any physical, mental or sensory disability. X. ADA Statement: The City of Bremerton does not discriminate on the basis of disability in programs and activities, which it operates pursuant to the requirements of the Americans with Disabilities Act of 1990, and ADA Amendments Act. This policy extends to both employment and admission to participation in the programs, services and activities of the City of Bremerton. Reasonable accommodation for employees or applicants for employment will be provided. XI. Termination: This Agreement shall remain in force until completion and acceptance of the services, terminated by written instrument upon mutual consent, or by the City of Bremerton for convenience. This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the terminating Party, and the non-performing Party does not commence correction of the failure of performance within thirty (30) days of the terminating Party’s sending notice to the non-performing Party. Any notice by Consultant shall include a report showing the status of all items listed in the Scope of Work current through the termination date. DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02 CITY OF BREMERTON I.E.F. CORPORATION Bremerton Public Works & Utilities Golden Eagle Evergreens By: By: its: Public Works & Utilities Director its: Date: ____________________ Date: ____________________ Approved as to form: Attest: ______________________ ________________________ Bremerton City Attorney City Clerk DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02 GM 6/16/20226/16/2022 EXHIBIT A MINOR FOREST PRODUCTS HARVEST AREA DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02 EXHIBIT B SCOPE OF WORK 1. Permittee shall not disturb, hinder, interfere in or otherwise inhibit the operations of the City of Bremerton. The City of Bremerton reserves for itself the right to make any use of Property entered by Permittee. 2. Prior to entering upon the Property, Permittee shall obtain a Specialized Forest Products Harvesting Permit from the State of Washington and provide a copy to the City of Bremerton. Any person entering the Property shall be required to carry a copy of the Permit on his/her person at all times while on the Property. 3. Permittee shall not build any fire on the Property or on any other City of Bremerton property and shall immediately report to the Forestry Manager or Supervisor any fire or signs of fire seen while on any City of Bremerton property. Permittee shall use reasonable efforts to suppress any fire that is non-threatening. 4. General Rules and Regulations: (a) Harvesting and removing secondary forest products is allowed only during daylight hours. (b) City of Bremerton access permit must be displayed on the dash in all authorized vehicles. (c) All gates must be kept locked upon entering and leaving Property. (d) Permittee agrees to report any illegal, unauthorized, or suspicious activities that they find on the Property to the Forestry Manager or a City of Bremerton representative. (e) All vehicles must stay on existing roads as shown in Exhibit A. Road closures must be respected. (f) Access onto City of Bremerton Property is only allowed for the purpose of brush and bough harvesting and no other activities. (g) Harvesters must wear bright orange hats or vests during hunting season. (h) Alcohol and Illicit Drugs are not allowed on city property. 5. Permittee shall obtain all governmental approvals, licenses, and permits required in connection with the Permitted Activities. 6. Alterations and Maintenance. Permittee shall maintain the Property in a clean and undamaged state and shall make no alterations to the Property without prior written approval of the City of Bremerton. 7. Permittee shall report within 48 hours any of the following:  Evidence of any illegal or unauthorized activity  Obstructions in roads and roadside ditches  Any other abnormal conditions 8. Title and risk of loss to the specialized forest products harvested hereunder shall pass when the products are severed from the stem. 9. Signs. The City shall allow Permittee to erect reasonable signs prohibiting the harvesting by others on the Property and Permittee shall remove said signs upon the termination of this Agreement. The City shall have the right to review location and size of signs prior to placement. 10. Property Condition and Clean up. Permittee shall be responsible for removal and clean up of all garbage, debris, and other materials associated with Permittee’s use of the Property at the end of each day. At the time of termination or expiration of this Agreement, Permittee shall leave the Property in a neat and clean condition. 11. The City or its assigns shall have the right to terminate this lease on 30 days notice and refund of lease fee. DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02 DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02 EXHIBIT C PAYMENT SCHEDULE 1. Agreed payment for salal and huckleberry brush, to be paid to the City of Bremerton, is $25,000 per year. Payment to be made to the City by July 1, 2022 and thereafter by each July 1st during the term of this Agreement. 2. Agreed payment to be paid to the City of Bremerton for boughs, is $0.08 per pound Western White Pine boughs, $0.10 per pound Western Red Cedar boughs, and $0.06 per pound Douglas Fir boughs. 3. Payment for boughs is to be made to the City after boughs are weighed and before end of quarter in which they were harvested. 4. Other secondary forest products that may be harvested, which are agreed upon by both Parties, will be paid at the agreed fair market value to the City of Bremerton. DocuSign Envelope ID: EDB2CF5E-61C0-4001-936A-2739923E9B02