HomeMy WebLinkAbout5.708 Original Contract
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AGREEMENT REGARDING GIFT OF FLUORIDATION SYSTEM
This Agreement Regarding Gift of Fluoridation System (the "Agreement") is entered into as
of ,2005 (the "Effective Date"), by and between Washington Dental
Service F dation, LLC, a Washington limited liability company ("WDSF"), and the City of Port
Angeles, Washington, a municipality (the "City") (collectively referred to herein as the "Parties").
RECITALS
WHEREAS, WDSF is a single member limited liability company of which Washington
Dental Service, an organization exempt from federal income tax within the provisions of Section
501 (c)(4) of the Internal Revenue Code of 1986, as amended (the "Code"), is the sole member;
WHEREAS, WDSF is organized and operated for charitable purposes including improving
the oral health of Washington residents by facilitating the implementation of community
fluoridation projects throughout the State of Washington;
WHEREAS, the City is a political subdivision of the State of Washington within the
meaning of Section l70(c)(1) ofthe Code;
WHEREAS, in furtherance ofWDSF's charitable mission to improve the oral health of
Washington residents, WDSF wishes to make a gift of a fluoridation system (the "System") to the
City for the purpose of fluoridating the Port Angeles public water supply, in accordance with the
terms and conditions set forth herein;
WHEREAS, the Port Angeles City Council (the "City Council") has determined that it is in
the best interests of the City's residents to fluoridate the Port Angeles public water supply, to accept
the gift ofthe System, and to proceed with implementation of a fluoridation system for the City's
public water supply;
WHEREAS, the City desires to accept WDSF's gift of the System, in accordance with the
terms and conditions set forth herein;
WHEREAS, contemporaneously with this Agreement, WDSF intends to enter into a design-
build agreement (the "Design-Build Agreement") with CH2M Hill Constructors, Inc., a Washington
corporation ("CH2M Hill"), for the design, construction and installation of the System on land
owned by the City;
WHEREAS, WDSF will be responsible for paying the Contract Price for the cost of the
design, construction and installation of the System;
WHEREAS, the City is not causing such design, construction and installation to be
performed by CH2M Hill through any separate contract or agreement;
WHEREAS, the City is not causing the design, construction and installation of the System
to be performed by WDSF through any separate contract or agreement;
WHEREAS, no part of the cost ofthe design, construction or installation ofthe System shall
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ever become an obligation ofthe City; the design, construction and installation of the System will
not be executed at the cost of the City and will not by law give rise to a lien or charge on any
property of the City;
WHEREAS, it is the Parties' expectation that the System be operational no later than March
1,2006; and
WHEREAS, WDSF and the City have determined that entering into this Agreement will
further the charitable and public service missions of the Parties.
NOW, THEREFORE, in consideration ofthe mutual promises, covenants, conditions and
performances set forth herein, the Parties recite, covenant and agree as follows:
AGREEMENT
ARTICLE I.
PURPOSE
Section 1.1 Purpose. The purpose of this Agreement is to establish the terms
and conditions ofWDSF's gift ofthe System to the City, and the City's acceptance ofthe gift. The
City will use the System to implement the City's community water fluoridation project.
ARTICLE II.
SYSTEM TRANSFER
Section 2.1 Gift of System. Subject to and upon the terms and conditions of this
Agreement, WDSF agrees and covenants to give, donate, and transfer to the City, at no cost, all of
WDSF's right, title and interest in and to the System. WDSF shall transfer the System to the City
(a) upon Substantial Completion ofthe System by CH2M Hill, (b) or otherwise pursuant to Section
5.2 below; provided however, that WDSF shall have ensured prior to any transfer that the System is
free of all liens, claims, demands or encumbrances of any kind, legal or equitable that prevent or
could prevent WDSF from transferring the System to the City on a free and clear basis. For
purposes of this Agreement, the term "Substantial Completion" shall have the same meaning as is
assigned in the Design-Build Agreement.
Section 2.2 City's Acceptance of Gift. Subject to and upon the terms and conditions of
this Agreement, and except as provided in Section 2.3, the City hereby accepts WDSF's gift ofthe
System and from and after WDSF's transfer of the System to the City at Substantial Completion, or
otherwise pursuant to Section 5.2 below, agrees to assume, perform, and fully discharge when due
any and all of the liabilities and obligations relating to the operation and ownership of the System,
other than those relating to WDSF's payment ofthe Contract Price, as that term is defined Section
6.2 below, for the costs of the design, construction and installation ofthe System (the "Assumed
Liabilities"). The term "liabilities" includes, but is not limited to, any and all debts, liabilities, and
obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or
determinable, known or unknown, including those arising under any federal, state, local or foreign
statute, law, ordinance, regulation, rule, code, order, writ, stipulation, permit, or other government
requirement and those arising under any trade payable, other accounts payable, assigned contract, or
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other contract.
Section 2.3 Excluded Liabilities. Assumed Liabilities shall not include WDSF's
obligation to pay to CH2M Hill the Contract Price for the design, construction and installation of the
System. This Section 2.3 does not, however, in any way limit WDSF's ability to recover any
amounts due to WDSF from the City underlSection 5.9 or Article VII ofthis Agreement.
Section 2.4 DISCLAIMER OF WARRANTIES. WDSF IS PROVIDING THE GIFT
"AS IS" and "WHERE IS" and WITHOUT WARRANTY OF ANY KIND. WDSF EXPRESSLY
DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT, AS WELL AS ANY WARRANTY WHATSOEVER WITH RESPECT
TO THE MARKETABILITY OR SITE CLASSIFICATION OF THE SYSTEM.
Section 2.5 City Responsibility for System Results and Condition. The City
acknowledges that, as between WDSF and the City, after transfer of the System to the City and
acceptance of the System by the City, the City has full responsibility for the use and results obtained
from the System, and that the entire risk of the System and any use, nonuse or failure of the System
is with the City. Without limiting the generality of the foregoing, WDSF will have no liability with
respect to: (A) the quality, nature, adequacy and physical condition ofthe System; (B) the
existence, quality, nature, adequacy, and physical condition of utilities serving the System (C) the
System's use, habitability, merchantability, or fitness, suitability, value or adequacy of the System
for any particular purpose; (D) the zoning or other legal status of the System or any other public or
private restrictions on use of the System; (E) the compliance of the assets or the System's operation
with any applicable codes, laws, regulations, statutes, ordinances, of any governmental or
quasi-governmental entity or any covenants, conditions and restrictions applicable to the System or
the fluoridation of a water supply; (F) the presence or absence of hazardous materials on, under or
about the System or the adjoining or neighboring property; (G) the quality of any labor and
materials used in any improvements on or benefiting the System; (H) the condition of title to the
System; (I) the economics ofthe present or future operation of the System; or (J) the health effects
related to the operation ofthe System. As between WDSF and the City, the City assumes the
responsibility and risks of all defects to and conditions in the System, including defects and
conditions, if any, that cannot be observed by inspection. WDSF shall not be liable for any latent or
patent defects in the System.
Section 2.6 Further Action. Each of the Parties shall execute and deliver such other
documents and take such further actions as may be reasonably required or appropriate to carry out
the purposes and intents ofthis Agreement, including but not limited to a transfer agreement and/or
bill of sale to effectuate WDSF' s transfer of the System to the City at Substantial Completion or
pursuant to Section 5.2 below.
ARTICLE III.
LICENSE TO ENTER PREMISES; TRANSFER COSTS
Section 3.1 License to Enter City Premises. The City hereby grants to WDSF and its
contractors, including specifically CH2M Hill, a revocable, non exclusive license to enter upon
property of the City at the City's landfill property located at 3501 W. 18th Street, Port Angeles, for
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the purpose of designing, installing, constructing and testing the System pursuant to the Design-
Build Agreement, but for no other purposes.
Section 3.2 Transfer of System to Permanent Facility. The parties recognize that, due
to changes in the City's water system as a result of the Elwha dams removal project, the System
may at first be installed in a temporary water treatment facility. Ifthe System is installed in a
temporary facility, it will be necessary to transfer the System to a permanent facility at some date in
the future. The estimated cost to transfer the System is thirty thousand dollars ($30,000). If the
System is installed in a temporary facility, WDSF hereby agrees to reimburse the City for all costs
incurred by the City in moving the System to a permanent facility, provided the amount of
reimbursement shall not exceed thirty thousand dollars ($30,000) (the "System Transfer Costs").
ARTICLE IV.
CITY'S REPRESENTATIONS AND WARRANTIES
The City hereby represents and warrants as follows.
Section 4.1 The City has the full right, power and authority to enter into this Agreement,
to accept WDSF's gift ofthe System, and to accept all ofWDSF's right, title and interest in and to
the System upon its transfer by WDSF at Substantial Completion or otherwise pursuant to Section
5.2 below.
Section 4.2 The City's performance hereunder does not violate any agreement between
the City and any third party, any obligation owed by the City to any third party, or the rights of any
third party.
Section 4.3 Other than litigation or claims that may arise directly as a result of the denial
of Protect the Peninsula's Future, Clallam County Citizens for Safe Drinking Water, Barney
Munger and Eloise Kailin's State Environmental Protection Act claim, there is no pending claim,
action, suit, proceeding, litigation, arbitration, or investigation against the City, and the City is not
subject to any continuing injunction, judgment or other order of any court, arbitrator or
governmental agency that affects the City's ability to enter into this Agreement or to carry out its
obligations set forth herein.
Section 4.4 The City will use the System exclusively for public purposes within the
meaning of Section l70( c)(1) ofthe Code, and the City will not take or fail to take any action that
would cause the System to be used for any other purposes.
ARTICLE V.
CITY'S RESPONSIBILITIES
The City agrees and covenants as follows.
Section 5.1 The City shall accept WDSF's transfer ofthe System and will assume all of
WDSF's right title and interest in and to the System at Substantial Completion in accordance with
the terms and conditions of this Agreement.
Section 5.2 The City shall accept WDSF's transfer of the System and will assume all of
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WDSF's right title and interest in and to the System, in whatever state of completion as the System
may exist, in the event of any termination of the Design-Build Agreement prior to Substantial
Completion of the System.
Section 5.3 The City shall not take or fail to take any action that will or could prevent its
acceptance ofWDSF's gift of the System or result in its rejection ofthe System prior to or after
Substantial Completion, as the case may be
Section 5.4 The City shall, alone and in conjunction with CH2M Hill, as required under
the Design Build Agreement, use reasonable and good faith efforts to obtain or provide for all
consents, approvals or other action by or any registration with, notice to or filing with any person,
entity, court or administrative or governmental body required in order to fluoridate the Port Angeles
public water supply; and, not later than one hundred eighty (180) days after the earlier of (a) final
termination of all legal challenges to fluoridation ofthe City's water supply or (b) Substantial
Completion, the City shall have secured all licenses, permits, registrations and other authorizations
required under federal, Washington, or local law necessary to fluoridate the Port Angeles public
water supply.
Section 5.5 Upon Substantial Completion and transfer by WDSF of the System, the City
shall fluoridate the Port Angeles public water supply for a continuous ten (10) year period, except
for reasonable periods of time for normal maintenance or repair or any break in service necessary to
switch-over to a future permanent water fluoridation system, and except in the event the City is
prevented from fluoridating the Port Angeles public water supply as a result of a court order or other
judicial decision.
Section 5.6 As between the City and WDSF, the City shall be responsible for
investigating each and every aspect of the System's construction and future operation, including,
without limitation: (i) all matters relating to the title, and all governmental and other legal
requirements such as taxes, assessments, zoning, use permit requirements, building permit
requirements, building codes, and other development requirements; (ii) the physical condition of the
System, including, without limitation, the infrastructure available or unavailable to the System (as
the case may be), access to the System, all other physical and functional aspects ofthe System,
including the presence or absence of hazardous or toxic materials, substances or wastes of any kind;
and (iii) all other matters of any significance affecting the System whether physical in nature or
intangible in nature.
Section 5.7 The City hereby agrees, at its cost, to defend with due diligence any lawsuit
filed by a third party that has as its goal the temporary or permanent injunction of the operation of
the System, including any lawsuit filed as a result ofthe City's denial of Protect the Peninsula's
Future, Clallam County Citizens for Safe Drinking Water, Barney Munger and Eloise Kailin's State
Environmental Protection Act claim.
Section 5.8 The City shall designate one or more representatives to work with and to
assist CH2M Hill with the design, construction, and installation ofthe System, as necessary, to
ensure that the System meets the requirements of the City and all applicable laws concerning the
fluoridation of a public water supply.
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Section 5.9 In the event the City fails to meet any of its obligations under Article IV or
Article V, after notice and a thirty (30) day opportunity to cure, the City hereby agrees and
covenants to repay WDSF any and all amounts WDSF expends or has expended for or in
connection with the design, construction and installation of the System, including without limitation
all administrative costs and expenses, legal or other professional fees, personnel time and the
System Transfer Costs (the "Repayment Amount"), such Repayment Amount not to exceed
$433,000; provided, however, that the foregoing limitation on the Repayment Amount shall not
relieve or limit the City's obligations to indemnify and hold WDSF harmless under Article VII.
ARTICLE VI.
CONDITIONS TO WDSF GIFT
The Gift is subject to and conditioned upon satisfaction ofthe conditions listed below,
unless waived in writing by WDSF:
Section 6.1 WDSF and CH2M Hill shall have entered into the Design-Build Agreement
for the design, construction and installation of the System.
Section 6.2 CH2M Hill and WDSF shall have agreed in writing that the System can and
shall be designed, constructed and installed by CH2M Hill for a Contract Price of three hundred
forty-three thousand dollars ($343,000), plus Washington State sales taxes (the "Contract Price").
Notwithstanding anything herein to the contrary, in the event a legal proceeding suspends, delays or
interrupts all or any part of the design, construction or installation of the System leading to increases
in the Contract Price, WDSF hereby agrees to consider paying for all or a part of such increases to
the Contract Price; provided, however, that in the event WDSF determines not to pay for such
increases to the Contract Price, WDSF shall have no further obligation to the City or duty under this
Agreement. In that event, WDSF shall have the right in its discretion to terminate the Design-Build
Agreement and transfer the System to the City pursuant to Section 5.2 above.
Section 6.3 As of the Effective Date of this Agreement, the City shall have provided to
WDSF written documentation evidencing formal action of the Port Angeles City Council
authorizing and approving the City's entry into this Agreement.
Section 6.4 CH2M Hill and the City shall have secured all permits and complied with all
requirements of any applicable governing bodies, including but not limited to the Washington State
Department of Health, for the design, construction and installation of the System.
Section 6.5 There shall have been no significant breach or failure to perform under the
Design-Build Agreement by CH2M Hill.
ARTICLE VII.
INDEMNIFICATION
Section 7.1 Notwithstanding anything to the contrary contained in this Agreement, the
City agrees and covenants to indemnify, defend and hold harmless WDSF and its trustees, officers,
members, employees, agents and representatives from and against any and all causes of action, suits
at law or equity or claims or demands and any costs, losses, liabilities, damages (including any
special, indirect, incidental or consequential damages), judgments, lawsuits, claims and expenses
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(including without limitation reasonable attorneys' fees and costs), of any nature, whether known or
unknown, fixed or contingent, due or to become due, relating to, incurred in connection with, or
arising out of any acts or omissions by the City or the operation of the System, including without
limitation any breach of warranty or covenant hereunder. The City's obligations under this Section
Ll shall not apply to the extent arising solely from WDSF's negligence or willful misconduct;
provided, however, that to the extent that this Agreement constitutes a "covenant, promise,
agreement or understanding in, or in connection with or collateral to, a contract or agreement
relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or
maintenance of, any building, highway, road, railroad, excavation, or other structure, project,
development, or improvement attached to real estate, including moving and demolition in
connection therewith, purporting to indemnifY against liability for damages arising out of bodily
injury to persons or damage to property" within the meaning ofRCW 4.24.115, the City's
obligations under this Section 7.1 shall apply to the extent of the City's negligence.
Section 7.2 Notwithstanding anything to the contrary contained in this Agreement, to the
maximum extent permitted by law, in no event shall WDSF be liable for any damages whatsoever
(including, without limitation, direct, consequential, indirect, special, or incidental damages, or
damages for loss of business profits, business interruption, loss of business information, or other
pecuniary loss) arising out ofthe use or inability to use the System, under contract, tort (including
negligence) or other cause of action and even if WDSF has been advised to the possibility of such
damages.
Section 7.3 The foregoing indemnities specifically include, without limitation, claims
brought by the City's employees against WDSF. THE FOREGOING INDEMNITIES ARE
EXPRESSLY INTENDED TO CONSTITUTE A WAIVER OF THE CITY'S IMMUNITY
UNDER WASHINGTON'S INDUSTRIAL INSURANCE ACT, RCW TITLE 51, TO THE
EXTENT NECESSARY TO PROVIDE WDSF WITH A FULL AND COMPLETE INDEMNITY
FROM CLAIMS MADE BY THE CITY AND ITS EMPLOYEES, TO THE EXTENT OF THEIR
NEGLIGENCE. THE CITY AND WDSF ACKNOWLEDGE THAT THE INDEMNIFICATION
PROVISIONS OF THIS ARTICLE WERE SPECIFICALLY NEGOTIATED AND AGREED
UPON BY THEM.
ARTICLE VIII.
GENERAL
Section 8.1 Choice of Law. This Agreement shall be governed and interpreted
according to the laws of the State of Washington. The Parties agree that Clallam County, in the
State of Washington, shall be the exclusive and proper forum for any action or proceeding,
including arbitration, if any, brought under this Agreement. The Parties accept the personal
jurisdiction of such courts.
Section 8.2 Dispute Resolution. The Parties shall use reasonable, good faith efforts to
cooperatively resolve any disputes that arise in connection with this Agreement. When a bona fide
dispute anses between the City and WDSF subject to this Section 8.2 the parties shall each notifY
the other of the dispute, with the notice specifYing the disputed issues and the position of the Party
submitting the notice. Ifthe Parties are unable to resolve a dispute within ten (10) business days,
pursuant to this Section 8.2 either Party may proceed with any remedy available to it at law or in
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equity.
Section 8.3 Remedies. Except as otherwise provided for herein, no remedy conferred by
any ofthe specific provisions ofthe Agreement or available to WDSF is intended to be exclusive of
any other remedy, and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder, now or hereafter existing at law or in equity or by statute or
otherwise. The election of anyone or more remedies by WDSF shall not constitute a waiver of the
right to pursue other available remedies. The City's sole and exclusive remedy from the City's use
or inability to use the System or any breach ofthis Agreement by WDSF shall be for the City to
discontinue use ofthe System or to repair or modify the System at the City's election and sole
expense or, when applicable, to pursue legal remedies under the Design-Build Agreement.
Section 8.4 Amendments. This Agreement may be amended, supplemented or
modified only by a writing dated and signed by both Parties.
Section 8.5 Assignment. Except as specifically provided in this Agreement, neither
Party may assign or transfer this Agreement or any of its rights hereunder, or delegate any of its
duties hereunder, without the prior written consent ofthe other Party. Any attempted assignment,
transfer, or delegation in contravention of this Section 8.5 shall be null and void. This Agreement
shall inure to the benefit of and be binding on the Parties hereto and their permitted successors and
aSSIgns.
Section 8.6 Severability. If any provision of this Agreement is invalid or unenforceable,
the other provisions herein shall remain in full force and effect in such jurisdiction and shall be
liberally construed in order to effectuate the purpose and intent of this Agreement, and the invalidity
or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of any such provision in any other jurisdiction.
Section 8.7 Waiver. Any failure or delay by either Party to exercise or partially exercise
any right, power or privilege hereunder shall not be deemed a waiver of any of the rights, powers or
privileges under the Agreement. No term or condition of this Agreement shall be held to be waived,
modified or deleted except by a written instrument signed by the Parties hereto. No such waiver,
modification or deletion in anyone instance shall be deemed to be a waiver, modification or
deletion of a term or condition in any other instance, whether like or unalike. Waiver of any breach
of any term or condition of this Agreement shall not be deemed a waiver of any prior or subsequent
breach.
Section 8.8 Entire Agreement. This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter hereof, and is not subject to amendment or modification
except as provided herein.
Section 8.9 Force Majeure. Neither party shall be deemed to be in violation ofthis
Agreement if such party is prevented from performing any of its obligations hereunder for any
reason beyond its control, including without limitation, acts of God or of any public enemy,
elements, flood, strikes, or an injunction or other judicial decision.
Section 8.10 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of the Parties thereto and their respective successors and assigns.
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Section 8.11 Section Headings. The headings of sections in this Agreement are for
reference only and shall not affect the meaning of this Agreement.
Section 8.12 Survival. The terms and conditions contained in the Agreement that by their
sense and context are intended to survive the performance of the Agreement by the Parties shall so
survive the completion of the performance, cancellation or termination of the Agreement, including
without limitation Section 2.4, Section 2.5, Article VII and Article VIII.
IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to
execute this Agreement as ofthe date written below.
WASHINGTON DENTAL SERVICE
FOUNDATION, LLC
CITY OF PORT ANGELES, WASHINGTON
By:~G~~
Name: Tracy E. Garland
Its: President and <;EO
Date: 3/ I r/05"
By: lli.D
Name: Richard A. Headric
Its: May,or
Date: ~.Jut A. I) h){)D5
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William E. Bloor
City Attorney
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Attest:
60 ~Be!:j~^-
City Clerk
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AGREEMENT
This Agreement is entered into as of April t:id, 2007 by and between Washington
Dental Service Foundation, LLC, a Washington limited liability company ("WDSF"), and the
City of Port Angeles, Washington, a municipality (the "City") (collectively referred to herein as
the "Parties").
Article I.
WDSF, in furtherance of the Gift Agreement dated March 1, 2005, has offered an
additional contribution for the betterment of the City's Public Works and Utilities Department.
The City is in need of an equipment storage shed for use by the City's Public Works and Utilities
Department.
Article II.
WDSF agrees to purchase and deliver to a site designated by the City a free-standing
equipment storage shed for use by the City's Public Works and Utilities Department. The City
agrees to set up the shed on the specified site and perform all required maintenance on the shed
for a minimum period often years. Neither party shall have any other or additional obligation to
the other on account of this Agreement.
Article III.
This Agreement constitutes the entire agreement of the Parties with respect to the subject
matter hereof.
WASHINGTON DENTAL SERVICE
FOUNDATION, LLC
CITY OF PORT ANGELES, WASHINGTON
By:~A
G enn A. Cutler,
Director of Public Works & Utilities
By: ~ {;. bC{~~~-
Tracy E. Garland, President\CEO
Attest:
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Becky J. U ,. y Clerk
A?Pjed as to f~,rm: I b
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William E. Bloor, City Attorney
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