HomeMy WebLinkAboutIndependent Contractor Agreement with Bodiford Construction for Construction of Ten Mile CrossingAGREEMENT
FOR
INDEPENDENT CONTRACTOR SERVICES
TEN MILE SEWER CROSSING
PW-09-009
THIS AGREEMENT FOR PROFESSIONAL SERVICES is made this ~ day of
February, 2009, 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 Broadway Avenue, Meridian, Idaho 83642, and BODIFORD
CONSTRUCTION, hereinafter referred to as "CONTRACTOR", whose business
address is 7660 N. Horseshoe Bend Rd. Ste. C, Boise. ID 83714 and whose Public
Works Contractor License .# is RCE-5380.
INTRODUCTION
Whereas, the City has a need for services involving the construction of
Ten Mile Sewer Crossing; and
WHEREAS, the Contractor is specially trained, experienced and
competent to perform and has agreed to provide such services;
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 all 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 properly 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
TEN MILE SEWER CROSSING PW-09-009 page 1 of 13
whatsoever and to authorize others to do so. If any such work is
copyrightable, the Contractor may copyright the same, except that, as to
any work which is copyrighted by the Contractor, the City reserves a
royalty-free, non-exclusive, and irrevocable license to reproduce, publish
and use such work, or any 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. Consideration
2.1 The Contractor shall be compensated on a Lump Sum basis in the
amount of $121,398.00 as provided in Attachment B "Payment Schedule"
attached hereto and by 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,
TEN MILE SEWER CROSSING PW-09-009 page 2 of 13
Contractor shall not be entitled by virtue of this Agreement to
consideration in the form of overtime, health insurance benefits,
retirement benefits, paid holidays or other paid leaves of absence of any
type or kind whatsoever.
3. Term:
3.1 This 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 listed 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 Attachment 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
3.5 TIME FOR EXECUTING CONTRACT AND LIQUIDATED
DAMAGES
Upon receipt of a Notice to Proceed, the Contractor shall have
40 calendar days to reach substantial completion and 54
calendar days to reach final completion of the work as
described herein. Contractor shall be liable to the City for any
delay beyond this time period in the amount of $300.00
per calendar day. Such payment shall be construed to be
liquidated damages by the Contractor in lieu of any claim or
damage because of such delay and not be construed as a
penalty.
TEN MILE SEWER CROSSING PW-09-009 page 3 of 13
4. Termination:
If, through any cause, CONTRACTOR, its ofFcers, 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, falsifies 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
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 sixty (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 liability to the CITY
for damages.
5. Independent 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. Except 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 performance of this agreement shall be
made by the CITY.
TEN MILE SEWER CROSSING PW-09-009 page 4 of 13
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 specified in this Agreement and, except as
expressly provided in this Agreement, shall not be subjected to City's
control with 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
and exclusively under the direction and supervision and control of the
Contractor.
6. Indemnification 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 costs, including
litigation costs and attorneys' fees, arising out of, resulting from , or in
connection with the performance 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 Certificate 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
TEN MILE SEWER CROSSING PW-09-009 page 5 of 13
performance 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 Broadway Avenue, Meridian, Idaho
83642.
6.2 Any deductibles, self-insured retention, or named insureds must
be declared in writing 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.
6.3 To the extent of the indemnity in this contract, Contractor's
Insurance coverage shall be primary insurance regarding the City's
elected officers, officials, employees and volunteers. Any insurance or
self-insurance maintained by the City or the City's elected officers,
officials, employees and volunteers shall be excess of the Contractor's
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.
6.6 The insurance policies are to contain, or be endorsed to contain.
the following provisions:
General Liability and Automotive Liability Coverages
a. The Contractor shall provide a specific endorsement
naming the City of Meridian and City's elected officials,
officers, employees, agents, and Volunteers, The Engineer
and Ronney & Kathryn Keeton of 1415 W. Kimra
Street,Meridian, ID 83642 and David Toland of 1395 W.
Kimra Street, Meridian, ID 83642 as additional insureds
regarding: liability arising from or in connection with the
performance or omission to perform any term, condition or
TEN MILE SEWER CROSSING PW-09-009 page 6 of 13
requirement of the Agreement by or on behalf of the
Contractor; services, products and completed operations of
the Contractor; premises owned, occupied or used by the
Contractor; and automobiles owned, leased, hired or
borrowed by the Contractor. The coverage shall contain
no special limitations on the scope of protection afforded to
the City or City's elected officials, officers, employees,
agents, and Volunteers.
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. Broadway Avenue
Meridian, Idaho 83642
Bold Construction. Inc
Attn: Jerald Taylor
7660 N Horseshoe Bend Rd. Ste C.
Boise. ID 83714
Idaho Public Works License #: RCE-5380
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.
9. Attorney 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.
TEN MILE SEWER CROSSING PW-09-009 page 7 of 13
10. Time is of the 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. Assignment: 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 performing the Work required herein,
CONTRACTOR shall not unlawfully discriminate in violation of any
federal, state or local law, rule or regulation 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 shall maintain all writings, documents and records
prepared or compiled in connection with the pertormance 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
to all matters covered by this Agreement. CONTRACTOR shall permit 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.
TEN MILE SEWER CROSSING PW-09-009 page 8 of 13
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 with 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 Severability: 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 Default: 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. Advice 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 Agreement: 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.
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.
TEN MILE SEWER CROSSING PW-09-009 page 9 of 13
23. Approval Required: This Agreement shall not become effective or
binding until approved by the City of Meridian.
w~ .
Approved as to Form -City Attorney
TEN MILE SEWER CROSSING PW-09-009
NAME: 1`~3~-Ol~yt ~'l~ ~ l l ~-~
Dated: 2'13- 0~
page 10 of 13
Dated: ~- - / ~ - O ~ _
TITLE: ~ ~°) I K 2~
Attachment A
SCOPE OF WORK
REFER TO INVITATION TO BID PW-09-009
ALL ADDENDUMS, ATTACHMENTS, AND EXHIBITS included in the
Invitation to Bid Package # PW-09-009, are by this reference made a
part hereof.
TEN MILE SEWER CROSSING PW-09-009 page 11 of 13
Attachment B
MILESTONE /PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed
$121,398.00.
-r ;f
y N,
~~. ~~
Furnish all labor, materials, equipment, and incidentals as required for the
CONSTRUCTION TEN MILE CREEK SEWER CROSSING, per the drawings and
s ecifications included in Bid No. PW-09-009 as referenced on Attachment A°
SPEC.
PAYMENT ITEM
DESCRIPTION EST.
QUANTITY
UNIT
UNIT PRICE
TOTAL PRICE
REFERENCE
Clearing and
201.4.1.8.1 Grubbin 1 LS $1,000.00 1,000.00
205.4.1.8.1 Dewaterin 1 LS $1,500.00 $1,500.00
Trench
Foundation
304.4.1.A.1 Stabilization 50 CY $1.00 $50.00
Imported Trench
306.4.1.D.1 Backfill 50 CY $15.00 $750.00
Miscellaneous
Surface
Restoration
307.4.1.A.9 Residential Lots 1 LS $2,500.00 $2,500.00
Type "P" Surface
Restoration
(Asphalt
307.4.1.F.1 Roadwa 100 LF $26.00 $2,600.00
Gravel Access
Road Surface
307.4.1.J.1 Restoration 1 LS $1,800.00 $1,800.00
Water Service
Connection, Size -
404.4.1.A.1 1-Inch 2 EA $1,200.00 $2,400.00
Gravity Sewer
Pipe - 20" PVC
501.4.1.8.1 C905 DR 18 170 LF $75.00 $12,750.00
Gravity Sewer
501.4.1.8.1 Pi e - 21" PVC 76 LF $68.00 $5,168.00
Gravity Sewer
Pipe - 20" Ductile
501.4.1.E.1 Iron Pi Crossin 1 LS $31,500.00 $31,500.00
Abandon F~cisting
501.4.1.F.1 Sewer Crossin 1 LS $1,500.00 $1,500.00
SPEC.
PAYMENT DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL PRICE
REFERENCE
TEN MILE SEWER CROSSING PW-09-009 page 12 of 13
Plastic Lined
Sanitary Sewer
Manhole - 60"
502.4.1.C.2 T e B
Plastic Lined 1 EA $9,000.00 $9,000.00
Sanitary Sewer
Manhole - 72"
502.4.1.C.2 T B
Connection to 1 EA $11,000.00 $11,000.00
Existing Manhole,
502.4.1.F.1 21" at MH #3
Connection to 1 EA $2,000.00 $2,000.00
Existing Manhole,
24" (at sputter
502.4.1.F.1 box 2 EA $3,500.00 $7,000.00
Sewer Service
Connection to
504.4.1.D.1 Main 1 EA $600.00 $600.00
Re-channel
507.4.1.1.1 Manhole 1 EA $1500.00 $1,500.00
Re-channel
507.4.1.1.1 Slitter Structure 1 EA $3 200.00 $3,200.00
Standard 3-inch
Rolled Curb &
706.4.1.A.1 Gutter 60 LF $15.00 $900.00
Remove &
Replace Concrete
Sidewalk (5'
706.4.1.E.1 Width 30 SY $30.00 $900.00
Construction
1103.4.1.A.1 Traffic Control 1 LS $1,500.00 $1,500.00
2010.4.1.A.1 Mobilisation 1 LS $2,500.00 $2,500.00
2040.4.1.A.1 Fence, Chain Link 16 LF $55.00 $880.00
Sewage Bypass
SP-2105.4.1.A.1 Plan 1 LS $1,000.00 $1,000.00
Sewage Bypass
SP-2105.4.1.6.1 Control S stem 1 LS $6,000.00 $6,000.00
Remove & Reset
SP 2142.4.1.A.1 Mailbox 2 EA $200.00 $400.00
Storm Water
SP 2216.4.1.8.1 Mana ement 1 LS $2 500.00 $2,500.00
SP 2220.4.1.A.1 Stream Crossin 1 LS $7,000.00 $7,000.00
CONTRACT AMOUNT $121.398.00
Travel expenses will be paid at no more than the City of Meridian's Travel and
Expense Reimbursement Policy.
TEN MILE SEWER CROSSING PW-09-009 page 13 of 13