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HomeMy WebLinkAboutIndependent Contractor Agreement with Hess Construction for Old Town Streetscape ReconstructionAGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES (PUBLIC WORKS OF IMPROVEMENT) THIS AGREEMENT FOR PROFESSIONAL SERVICES is made this _16th_ day of _September , 2008, and entered into by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho, hereinafter referred to as "CITY", 33 East Idaho Avenue, Meridian, Idaho 83642, and Hess Construction, hereinafter referred to as "CONTRACTORp, whose business address is 519 E Karcher Rd. Nampa. ID 83687 and whose Public Works Contractor License # is 10917 AAA-1.2.3 INTRODUCTION Whereas, the City has a need for services involving OLD TOWN STREETSCAPE RECONSTRUCTION ;and WHEREAS, the Contractor is specially trained, experiencx3d and competent to perform and has agreed to provide such servioes; NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties agree as follows: TERMS AND CONDITIONS 1. Scope of Work: 1.1 CONTRACTOR shall perform and furnish to the City upon execution of this Agreement and receipt of the City's written notice to proceed, all services and work, and comply in al! respects, as specified in the document titled °Scope of Work° a copy of which is attached hereto as Attachment "A" and incorporated herein by this reference, together with any amendments that may be agreed to in writing by the parties. 1.2 All documents, drawings and written work product prepared or produced by the Contractor under this Agreement, including without limitation electronic data files, are the property of the Contractor, provided, however, the City shall have the right to reproduce, publish and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. If any such work is copyrightable, the Contractor may copyright the same, except that, as to OLD TOWN STREETSCAPE RECONSTRUCTION - page 1 of 12 any work which is copyrighted by the Contractor, the City reserves a royalty-free, non-exclusive, and irrevocable license to reproduces, publish and use such work, or a-ny part thereof, and to authorize others to do so. 1.3 The Contractor shall provide services and work under this Agreement consistent with the requirements and standards established by applicable federal, state and city laws, ordinances, regulations and resolutions. The Contractor represents and warrants that it will perform its work in accordance with generally accepted industry standards and practices for the profession or professions that are used in performance of this Agreement and that are in effect at the time of performance of this Agreement. Except for that representation and any representations made or contained in any proposal submitted by the Contractor and any reports or opinions prepared or issued as part of the work performed by the Contractor under this Agreement, Contractor makes no other warranties, either express or implied, as part of this Agreement. 1.4 Services and work provide by the contractor at the City's request under this Agreement will be performed in a timely manner in accordance with a Schedule of Work, which the parties hereto shall agree to. The Schedule of Work may be revised from time to time upon mutual written consent of the parties. 2. Consid®ration 2.1 The Contractor shall be compensated on a Lump Sum basis as provided in Attachment B Payment Schedule° attached hereto and 6y reference made a part hereof. 2.2 The Contractor shall provide the City with a monthly statement, as the work warrants, of fees earned and costs incurred for services provided during the billing period, which the City will pay within 30 days of receipt of a correct invoice and approval by the City. The City will not withhold any Federal or State income taxes or Social Security Tax from any payment made by City to Contractor under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums is the sole responsibility of Contractor. 2.3 Except as expressly provided in this Agreement, Contractor shall not be entitled to no receive from the City any additional consideration, compensation, salary, wages, or other type of remuneration for services rendered under this Agreement., including ,but not limited to, meals, lodging, transportation, drawings, renderings or mockups. Specifically, Contractor shall not be entitled by virtue of this Agreement to OLD TOWN STREETSCAPE RECONSTRUCTION - page 2 of 12 consideration in the form of overtime, health insurance benefits, retirement benefds, paid holidays or other paid leaves of absence of any type or kind whatsoever. 3. Term: 3.1 Thi$ agreement shall become effective upon execution by both parties, and shall expire upon (a) completion of the agreed upon work, (b) September 30, 2009 or (c) unless sooner terminated as provided below or unless some other method or time of termination is fisted in Attachment A. This Agreement shall terminate automatically on the occurrence of (a) bankruptcy or insolvency of either party, or (b) sale of Contractors business. 3.2 Should Contractor default in the performance of this Agreement or materially breach any of its provisions, City, at City's option, may terminate this Agreement by giving written notification to Contractor. 3.3 Should City fail to pay Contractor all or any par of the compensation set forth in Exhibit B of this Agreement on the date due, Contractor, at the Contractor's option, may terminate this Agreement if the failure is not remedied by the City within thirty (30) days from the date payment is due. 3.4 This Agreement shall terminate automatically on the occurrence of any of the following events: a. Bankruptcy of insolvency of either party; b. Sale of Contractor's business; or c. Death of Contractor 4. Termination: If, through any cause, CONTRACTOR, its officers, employees, or agents fails to fulfill in a timely and proper manner its obligations under this Agreement, violates any of the covenants, agreements, or stipulations of this Agreement, falsfies any record or document required to be prepared under this agreement, engages in fraud, dishonesty, or any other act of misconduct in the performance of this contract, or if the City Council determines that termination of this Agreement is in the best interest of CITY, the CITY shall thereupon have the right to terminate this Agreement OLD TOWN STREETSCAPE RECONSTRUCTION - page 3 of 12 by giving written notice to CONTRACTOR of such termination and specifying the effective date thereof at least fifteen (15) days before the effective date of such termination. CONTRACTOR may terminate this agreement at any time by giving at least sbcty (60) days notice to CITY. In the event of any termination of this Agreement, all finished or unfinished documents, data, and reports prepared by CONTRACTOR under this Agreement shall, at the option of the CITY, become its property, and CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily complete hereunder. Notwithstanding the above, CONTRACTOR shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of this Agreement by CONTRACTOR, and the CITY may withhold any payments to CONTRACTOR for the purposes of set off until such time as the exact amount of damages due the CITY from CONTRACTOR is determined. This provision shall survive.the termination of this agreement and shall not relieve CONTRACTOR of its Iiabllityy to the CITY for damages. 5. Indep®nd®nt Contractor: 5.1 In all matters pertaining to this agreement, CONTRACTOR shall be acting as an independent contractor, and neither CONTRACTOR nor any officer, employee or agent of CONTRACTOR will be deemed an employee of CITY. Exospt as expressly provided in Attachment A, Contractor has no authority or responsibility to exercise any rights or power vested in the City and therefore has no authority to bind or incur any obligation on behalf of the City. The selection and designation of the personnel of the CITY in the pertormance of this agreement shall be made by the CITY. 5.2 Contractor, its agents, officers, and employees are and at all times during the term of this Agreement shall represent and conduct themselves as independent contractors and not as employees of the City. 5.3 Contractor shall determine the method, details and means of performing the work and services to be provided by Contractor under this Agreement. Contractor shall be responsible to City only for the requirements and results specfied in this Agreement and, except as expressly provided in this Agreement, shall not be subjected to City's control wkh respect to the physical action or activities of Contractor in fulfillment of this Agreement. If in the performance of this Agreement any third persons are employed by Contractor, such persons shall be entirely OLD T01MN STREETSCAPE RECONSTRUCTION - page 4 of 12 and exclusively under the direction and supervision and control of the Contractor. 6. Ind®mniflcation and Insurance: CONTRACTOR shall indemnify and save and hold harmless CITY from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses and other costs including litigation costs and attorney's fees, arising out of, resulting from, or in connection with the performance of this Agreement by the CONTRACTOR, its servants, agents, officers, employees, guests, and business invitees, and not caused by or arising out of the tortuous conduct of CITY or its employees. CONTRACTOR shall maintain, and specifically agrees that it will maintain, throughout the term of this Agreement, liability insurance, in which the CITY shall be named an additional insured in the minimum amounts as follow: General Liability One Million Dollars ($1,000,000) per incident or occurrence, Automobile Liability Insurance One Million Dollars ($1,000,000) per incident or occurrence and Workers' Compensation Insurance, in the statutory limits as required by law.. The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless CITY; and if CITY becomes liable for an amount in excess of the insurance limits, herein provided, CONTRACTOR covenants and agrees to indemnify and save and hold harmless CITY from and for all such losses, claims, actions, or judgments for damages or injury to persons or property and other cysts, including litigation costs and attorneys' fees, arising out of, resulting from , or in connection with the pertormance of this Agreement by the Contractor or Contractor's officers, employs, agents, representatives or subcontractors and resulting in or attributable to personal injury, death, or damage or destruction to tangible or intangible property, including use of. CONTRACTOR shall provide CITY with a Certficate of Insurance, or other proof of insurance evidencing CONTRACTOR'S compliance with the requirements of this paragraph and file such proof of insurance with the CITY at least ten (10) days prior to the date Contractor begins pertormance of it's obligations under this Agreement. In the event the insurance minimums are changed, CONTRACTOR shall immediately submit proof of compliance with the changed limits. Evidence of all insurance shall be submitted to the City Purchasing Agent with a copy to Meridian City Accounting, 33 East Idaho Avenue, Meridian, Idaho 83642. 6.2 Any deductibles, self-insured retention, or named insureds must be declared in wrfing and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles, self-insured retentions or named insureds; or the Contractor shall provide a bond, cash or letter of credit guaranteeing payment of losses and related investigations, claim administration and defense expenses. OLD TOWN STREETSCAPE RECONSTRUCTION - page 5 of 12 To the extent of the indemnity in this contract, Contractor's Insurance cx~verage shall be primary insurance regarding the City's elected officers, officials, employees and volunteers. Any insuranoe or self-insurance maintained by the City or the City's elected officers, officials, employees and volunteers shall be excess of the Contractors insurance and shall not contribute with Contractor's insurance except as to the extent of City's negligence. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 6.4 All insurance coverages for subcontractors shall be subject to all of the insurance and indemnity requirements stated herein. 6.5 The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's agents, representatives, employees or subcontractors. 7. Bonds: Payment and Performance Bonds are required on all Publics Works of Improvement Projects over $25,000.00 8. Notices: Any and all notices required to be given by either of the parties hereto, unless otherwise stated in this agreement, shall be in writing and be deemed communicated when mailed in the United States mail, certified, return receipt requested, addressed as follows: City of Meridian Purchasing Agent 33 E. Idaho Avenue Meridian, Idaho 83642 HESS CONSTRUCTION Attn: MARK HESS 519 E KARCHER RD NAMPA. ID 83687 Idaho Public Works License #: 10917 Either party may change their address for the purpose of this paragraph by giving written notice of such change to the other in the manner herein provided. OLD TOWN STREETSCAPE RECONSTRUCTION - page 6 of 12 9. Attorn®y Fees: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorneys' fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 10. Tim® is of th® Essence: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of, and a default under, this Agreement by the party so failing to perform. 11. Assignor®nt: It is expressly agreed and understood by the. parties hereto, that CONTRACTOR shall not have the right to assign, transfer, hypothecate or sell any of its rights under this Agreement except upon the prior express written consent of CITY. 12. Discrimination Prohibited: In perfomling the Work required herein, CONTRACTOR shall not unlawfully discriminate in violation of any federal, state or local law, rule or regL[ation against any person on the basis of race, color, religion, sex, national origin or ancestry, age or disability. 13. Reports and Information: 13.1 At such times and in such forms as the CITY may require, there shall be furnished to the CITY such statements, records, reports, data and information as the CITY may request pertaining to matters covered by this Agreement. 13.2 Contractor sha11 maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of four (4) years from the termination or completion of this or Agreement. This includes any handwriting, typewriting, printing, photo static, photographic and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof. 14. Audits and Inspections: At any time during normal business hours and as often as the CITY may deem necessary, there shall be made available to the CITY for examination all of CONTRACTOR'S records with respect OLD TOWN STREETSCAPE RECONSTRUCTION - page 7 of 12 to all matters covered by this Agreement. CONTRACTOR shall pem~it the CITY to audit, examine, and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. 15. Publication, Reproduction and Use of Material: No material produced in whole or in part under this Agreement shall be subject to copyright in the United States or in any other country. The CITY shall have unrestricted authority to publish, disclose and otherwise use, in whole or in part, any reports, data or other materials prepared under this Agreement. 16. Compliance wig Laws: In performing the scope of work required hereunder, CONTRACTOR shall comply with all applicable laws, ordinances, and codes of Federal, State, and local governments. 17. Changes: The CITY may, from time to time, request changes in the Scope of Work to be performed hereunder. Such changes, including any increase or decrease in the amount of CONTRACTOR'S compensation, which are mutually agreed upon by and between the CITY and CONTRACTOR, shall be incorporated in written amendments which shall be executed with the same formalities as this Agreement. 18. Construction and Severabitity: If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. 19. Waiver of D®fault: Waiver of default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided above. 20. Advic® of Attorney: Each party warrants and represents that in executing this Agreement. It has received independent legal advice from its attorney's or the opportunity to seek such advice. 21. Entire Agre®m®nt: This Agreement contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral of written, whether previous to the execution hereof or contemporaneous herewith. OLD TOWN STREETSCAPE RECONSTRUCTION - page 8 of 12 22. Applicable Law: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho, and the ordinances of the City of Meridian. 23. Approval R®quired: This Agreement shall not become effective or binding until approved by the City of Meridian. CITY OF MERIDIAN CONTRA ~-_ s God ~tcrtdu, 1vc R BY: TAMMY de ERD, MAYOR BY: ~1nax ~• f~rs3 ~ r~~soErP Dated: ~~~ - ~d Dated: S~~n.~ca lY~dooB Attest: Approved as to Con nt BY: / KEITH , PU C IN! Dated: ~ - l ~ ^ ~8 Approv®d as to Form CITY ATTORNEY ~any4 Sew Department Approval BY: NAME: ~ ~~e~ ~. ~ddoW TITLE: ~A~kt ~ ~ ~W~/ Dated: '~ I L'7 ! Od' OLD TOWN STREETSCAPE RECONSTRUCTION - page 9 of 12 Attachment A SCOPE OF WORK TASKS: 1. Provide all labor, material and equipment to complete the site work. There are a total of seven (~ tree box replacements. Locations are as follows: Three (3) new boxes on Idaho Street in front of Old Town Library One (1) new box at 706 Main Street. One (1) new box at 140 E. Idaho Ave. One (1) new box at 52 E. Idaho Ave. One (1) new box at 805 N. Main St. 2. The Tree boxes to be replaced will be identfied by the City of Meridian Parks Department by an orange paint marking on the curb in front of the tree. The tree diagram called out on the plans is the same for all above listed locations. The installation of planters, bike racks and trash can pertains only to the Old Town Library location. 3. Clear and grub existing site. Properly dispose of any misc. debris. Protect trees adjacent to project site from damage due to construction. 4. Brick that is removed from existing ekes is required to be saved and palletized. 5. Cut and fill entire site. Waste ail unsuitable spoils off-site. lmport/export additions! material as required. 6. Saw cut and remove existing concrete pavement, curb 8~ gutter and asphalt pavement. 7. Provide all site demolition as called out on C2.00. 8. Provide ail excavation, backfill, base and compaction for all site concrete paving, brick paving and asphalt paving areas,. and landscape areas. 9. Provide all concrete paving, ADA ramp, curb ~ gutter, brick paving and asphalt paving including base material. 10. Provide irrigation to planter pots and tree wells. 11. Trees will already be removed by the City of Meridian Park Department. Four feet of the trunk will be left standing to aid the contractor in stump removal. 12. Tree grate frame, traffic rated pull boxes, punter pots, bike racks,. and trash redpthcles will provided by City of Meridian Parks department. Contractor shall install the City provided furnishings, check each item and verify that all equipment is properly installed, adjust all component as necessary to ensure proper operation, remove all labels from equipment, remove all packing materials from the job site and clean or restore all marred surfads. The Bike Rack, Bench, and Flower Pots have been ordered. The contractor will be required to return to the site to install the above items. This installation could take place up to 50 days from the date the project commends and is anticipated to be after contractor has completed the rest of the project and left the site. The Bike Rack and Bench will need to be surface mounted and the Flower Pots sit on the concrete. 13. Contractor is responsible for the use tax on above items (approximate value is $4,508.00) OLD TOWN STREETSCAPE RECONSTRUCTION - page 10 of 12 14. Contractor is responsible for erosion ant! sediment control per local, state and federal regulations; stnast cleaning and repair damage to existing roads, asphalt, landscaping etc. 15. Provide all notifications, permits, and fees for this work. Two permits are requested as to alleviate traffic congestion in the Downtown Corridor, one for the work at the Library location, and one for the other 4 locations. 16. The City will require Contractor to provide a proposal and will issue a change order if additional work is required by ACRD. 17. Ail surveying and staking is the responsibilityr of the Contractor. 18. Provide daily clean-up and removal of debris. 19. Contractor responsible to call Digline for locates. 20. Construction work hours are regulated to ACRD permits. No work shall be performed on weekends. ADDITIONAL INFORMATION: 7. Electrical /Lighting: Tap onto the e~asting street light wiring at the N/E comer of North Meridian Road and Idaho. Run electrical conduit to the east and connect the new street light. The height of the new street light pole is changed from 12 feet to 14 feet. 2. Concrete Removal 8 Stucco on Buildin®: The stucco work on the building is covering the sidewalk in some areas, great care should be taken when demoing the sidewalk. The City acknowledges that there may be the need to repair some stucxo after sidewalk demolition. Please provide Option Pricing for this. The approach to the eastern most entrance to the building may also need to be replaced if damaged during demolition. Please provide Option Pricing for this as well. 3. Flat Work The area to be remaved and replaced shall be 8 feet from back of curb and 14 feet long (7 feet on both sides of the trees). Any other hardscape that needs to be removed to match grades will be addressed as a change order. OLD TOWN STREETSCAPE RECONSTRUCTION - page 11 of 12 Attachment B MILESTONE /PAYMENT SCHEDULE A. Total and complete compensation for this Agreement shall not exceed $38,575.00 TASK DESCRIPTION DATE AMOUNT A Furnish all labor, materials, equipment and incidentals 9-12-08 • as required for the OI.D TOWN STREETSCAPE RECONSTRUCTION. TOTAL $38,575.00 Travel ®xpenses will be paid at no mor® than the City of M®ridian's Travel and Expense Reimbursement Policy. OLD TOWN STREETSCAPE RECONSTRUCTION - page 12 of 12