HomeMy WebLinkAboutIndependent Contractor Services Agreement with Power Plus for Main Street Corridor Street Light ConversionAGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES
MAIN STREET CORRIDOR STREET LIGHT CONVERSIONS
PROJECT #6007-10188
THIS AGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES is made
this day of JUNE, 2011, 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 POWER PLUS, INC., hereinafter referred to as "CONTRACTOR", whose
business address is 25 Hartman St., Boise, ID 83704 and whose Public Works
Contractor License # is C-14995.
INTRODUCTION
Whereas, the City has a need for services involving MAIN STREET
CORRIDOR STREET LIGHT CONVERSIONS; and
WHEREAS, the Contractor is specially trained, experienced and
competent to pe~orm 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 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
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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 aroyalty-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 underthis 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 bythe Contractor and any reports oropinions 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 provided 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 as
provided in Attachment B "Payment Schedule" attached hereto and by
reference made a part hereof for the Not-To-Exceed amount of $112,931.00.
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 Taxfrom any payment made by Cityto
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.
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2.3 This project is funded by an Energy Efficiency and Conservation
Block Grant. EECBG Guidelines require that invoices submitted for payment
be separated into individual line items for labor and individual line items for
equipment and supplies.
2.4 Except as expressly provided in this Agreement, Contractor shall not
be entitled to receive from the City any additional consideration,
compensation, salary, wages, or other type of remuneration for services
rendered underthis 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 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.
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 part 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: Upon receipt of a Notice to
Proceed, the Contractor shall have a total of 60 (sixty) calendar days
to complete the work as described herein. Contractor has ten (10)
calendar days from Notice To Proceed to notify City of any delays due
to product availability. Contractor shall be liable to the City for any delay
beyond this time period in the amount of $300.00 (three hundred
dollars) per calendar day. Such payment shall be construed to be
liquidated damages by the Contractor in lieu of any claim or damage
because such delay and not be construed as a penalty.
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4. Termination:
4.1 If, through any cause, CONTRACTOR, its officers, employees, or
agents fails to fulfill in a timely and proper manner its obligations underthis
Agreement, violates any of the covenants, agreements, orstipulations ofthis
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 ofthis 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.
4.2 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.
4.3 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 ofthis agreement
and shall not relieve CONTRACTOR of its liabilitytothe CITYfordamages.
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 oragentof CONTRACTORwill bedeemed an employeeof
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 ofthis agreement shall be made by the CITY.
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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.
5.4 EECBG GRANT REQUIREMENTS
This project is being funded by an Energy Efficiency and Conservation
Block Grant. The Davis-Bacon Act applies to this project and it is the
responsibility of the Contractor to comply in all aspects of the law.
This Request for Proposal and resulting contract, will besubject toHUD-
4010 Federal Labor Standards Provisions attached hereto as
"Attachment B"and made a part hereof. Paragraph 2 on page 2 of 5 of
HUD-4010 states that the City may withhold payment to Contractor for
failure to pay wages when due. Davis-Bacon requires wages to be
paid not less often than once a week. All subcontractors and any
lower tier subcontractors are subject to the same Davis-Bacon
Wage requirements as the general contractor.
The wage rate decision for the area incorporating the City of Meridian
may be found at the following web address:
http://www.gpo.govldavisbaconll D. htm l
HUD ACT-SECTION 3
All contracts and subcontracts that result from this proposal are
subject to the following:
A. The work to be performed under this contract is subject to the requirements of section 3 of the
Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701 u (section 3). The
purpose of section 3 is to ensure that employment and other economic opportunities generated by
HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent
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feasible, be directed to low- and very low income persons, particularly persons who are recipients 6
HUD assistance for housing.
B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which
implement section 3. As evidenced by their execution of this contract, the parties to this contract
certify that they are under no contractual or other impediment that would prevent them from
complying with the part i35 regulations.
C. The contractor agrees to send to each labor organization or representative of workers with which
the contractor has a collective bargaining agreement or other understanding, if any, a notice advising
the labor organization or workers `representative ofthe contractor's commitments under this section 3
clause, and will post copies of the notice in conspicuous places at the work site where both
employees and applicants for training and employment positions can see the notice. The notice shall
describe the section 3 preference, shall set forth minimum number and job titles subject to hire,
availability of apprenticeship and training positions, the qualifications for each; and the name and
location of the person(s) taking applications for each of the positions; and the anticipated date the
work shall begin.
D. The contractor agrees to include this section 3 clause in every subcontract subject to compliance
with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an
applicable provision of the subcontract or in this section 3 clause, upon a finding that the
subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract
with any subcontractor where the contractor has notice or knowledge that the subcontractor has been
found in violation of the regulations in 24 CFR part 135.
E. The contractor will certify that any vacant employment positions, including training positions, that
are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons
other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be
directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135.
F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination b
this contract for default, and debarment or suspension from future HUD assisted contracts.
G. With respect to work performed in connection with section 3 covered Indian housing assistance,
section 7(b) of the Indian Self Determination and Education Assistance Act (25 U.S.C. 450e) also
applies to the work to be performed under this contract. Section 7(b) requires that to the greatest
extent feasible (i) preference and opportunities for training and employment shall be given to Indians,
and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations
and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of
section 3 and section 7(b) agree to comply with section 3 to the maximum extentfeasible, butnotin
derogation of compliance with section 7(b).
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
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connection with the performance ofthis Agreement bythe CONTRACTOR,
its servants, agents, officers, employees, guests, and business invitees, and
notcaused byorarising outof thetortious conductof CITYor its employees.
CONTRACTOR shall maintain, and specifically agrees that it will maintain,
,~
throughouttheterm ofthis 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
oroccurrence and Workers' Compensation Insurance, in the statutory limits
as required bylaw.. The limits of insurance shall not be deemed a limitation
ofthe covenantsto indemnifyand save and hold harmless CITY; and ifCITY
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 outof, resultingfrom, or
in connection with the performance ofthis Agreement by the Contractor or
Contractor's officers, employs, agents, representatives orsubcontractors 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 priorto the date Contractor begins 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
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shall not contribute with Contractor's insurance except as to the extent of
City's negligence.
6.4 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.
6.5 All insurance coverages for subcontractors shall be subject to all of
the insurance and indemnity requirements stated herein.
6.6 The limits of insurance described herein shall not limit the liability of
the Contractor and Contractor's agents, representatives, employees or
subcontractors.
7. 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
208-888-4433
Power Plus, Inc
Attn: Mark McKibben
25 Hartman St
Boise, ID 83704
208-323-1506
Idaho Public Works License #: C-14995
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.
8. 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
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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.
9. 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.
10. Assignment: It is expressly agreed and understood by the parties hereto,
that CONTRACTOR shall not have the rightto assign, transfer, hypothecate
or sell any of its rights under this Agreement except upon the prior express
written consent of CITY.
11. 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.
12. Reports and Information:
12.1 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.
12.2 Contractor shall maintain all writings, documents and records
prepared orcompiled in connection with the performance of thisAgreement
fora minimum of four (4) years from thetermination orcompletion 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.
13. Audits and Inspections: At anytime 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
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personnel, conditions of employment and other data relating to all matters
covered by this Agreement.
14. 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.
15. 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.
16. Changes: The CITY may, from time to time, request changes in the Scope
of Workto 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.
17. 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.
18. 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 unlessthisAgreement ismodified asprovided
above.
19. 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.
20. Entire Agreement: This Agreement contains the entire agreement of the
parties and supersedes anyand all otheragreements orunderstandings, oral
of written, whether previous to the execution hereof or contemporaneous
herewith.
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21. Order of Precedence: The order or precedence shall be the contract
agreement, the Invitation for Bid document, then the winning bidders
submitted bid document.
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 Required: This Agreementshall not become effective or binding
until approved by the City of Meridian.
CITY OF MERIDIAN
BY:
TAMMY WEERD, MAYOR
Dated: S, /~~n P ?g, ao~ I
POWER PLUS, INC
~ `~C~ ..
~~
BY: MARK MCKIBBEN
Dated:
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x'~a*.rµ we ; S.. ti ; t.,
V
A roved b Cit Council: ~ rP ~~ ~~•°
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JAYCEE A , :~CL K `~ ~ ~~~
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Approved as to Content
BY: G'r/
KEITH , PURC SING AGENT
Dated: ~O/ ~- 2// /
Approved as to Form
CITY ATTORNEY
T,Li~
Department Approval
BY: WPB = ~ G/~-~~Z.
NAME: -~`
TITLE: ~c..~ N~ ~~Ic~. ~r~Vr>,c.~. ~...
Dated: ~ z 0
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Attachment A
SCOPE OFWORK
REFER TO INVITATION FOR BID PW-11-6007-10188
ALL ADDENDUMS, ATTACHMENTS, AND EXHIBITS included in the
Invitation for Bid Package # PW-11-6007-10188 dated 06-09-2011 by
Mark McKibben, are by this reference made a part hereof.
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~ +
Attachment B
MILESTONE 1 PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed
$112,931.00.
TASK DESCRIPTION Unit Est Qty Unit Price AMOUN
T
Item 1 Retrofit Existing 250W Decorative Luminaire EA 24 $615.00 $14,760.00
with Induction Lam Kit
Item Retrofit Existin 150W Decorative Luminaire
g
EA
28
$498.00
$13,944.00
2A with 85W Induction Lamp Kit
Item 3 Retrofit Existing 150W Bollard Luminaire with EA 3 $498.00 $1494.00
55W Induction Lam Kit
Item 4 Replace Existing Globe Luminaire Set with EA 5 $1
299.00 $6495.00
New Sin le 85W Induction Luminaire ,
Item 5 Replace Existing 400W Luminaire with New EA 41 $960.00 $39,360.00
LED Luminaire
Item 6 Replace Existing 250W Intersection EA 32 $799.00 $25,568.00
Luminaire with New LED Luminaire
Item 7 Replace Existing 250W Interchange EA 13 $870.00 $11,310.00
Luminaire with New LED Luminaire
TOTAL CONTRACT PRICE $112,931.00
Travel expenses will be paid at no more than the City of Meridian's Travel and
Expense Reimbursement Policy.
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