Independent Contractor Agreement with Layne of Idaho 77 acre Pumping SystemAGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES
77 ACRE PARK PUMPING SYSTEM
PROJECT # 10121.d
THIS AGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES is made this
3rd day of October, 2014, 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 Layne of Idaho,
hereinafter referred to as "CONTRACTOR", whose business address is P O Box 1005,
Nampa, ID 83653 and whose Public Works Contractor License # is C -11303-C-4.
INTRODUCTION
Whereas, the City has a need for services involving 77 ACRE PARK
PUMPING SYSTEM; 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
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 authorize others to do so. If any
such work is copyrightable, the Contractor may copyright the same, exceptthat, 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
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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 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 Not -To -Exceed basis as provided
in Attachment B "Payment Schedule" attached hereto and by reference made a
part hereof for the Not -To -Exceed amount of $39,282.00.
2.2 The Contractor shall provide the City with a monthly statement and
supporting invoices, 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 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 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) or unless sooner
terminated as provided in Sections 3.2, 3.3, and Section 4 below or unless some
other method or time of termination is listed in Attachment A.
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.
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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 TIME FOR EXECUTING CONTRACT AND LIQUIDATED DAMAGES
Upon receipt of a Notice to Proceed, the Contractor shall have 90 (ninety)
calendar days to complete the work as described herein. Contractor shall be
liable to the City for any delay beyond this time period in the amount of
$500.00 (five 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 of such delay and not be construed as a penalty. See
Milestones listed on Attachment B.
Substantial Completion shall be accomplished within 60 (sixty) calendar days
from Notice to Proceed. This project shall be considered Substantially
Complete when the Owner has full and unrestricted use and benefit of the
facilities, both from an operational and safety standpoint, and only minor
incidental work, corrections or repairs remain for the physical completion of the
total contract. Contractor shall be liable to the City for any delay beyond this
time period in the amount of $250.00 (two hundred fifty dollars) 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.
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 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.
4.2 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
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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.
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:
6.1 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 tortious 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
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litigation costs and attorneys' fees, arising out of, resulting from , or in connection with
the performance of this Agreement bythe 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 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.
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. Bonds: Payment and Performance Bonds are required on all Public Works
Improvement Projects per the ISPWC and the City of Meridian Supplemental
Specifications & Drawings to the ISPWC, which by this reference are made a part
hereof.
8. Warranty: All construction and equipment provided under this agreement shall be
warranted for 2 years from the date of the City of Meridian acceptance per the
ISPWC and the Meridian Supplemental Specifications & Drawings to the ISPWC
and any modifications, which by this reference are made a part hereof.
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All items found to be defective during a warranty inspection and subsequently
corrected will require an additional two (2) year warranty from the date of City's
acceptance of the corrected work.
9. 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 CONTRACTOR
City of Meridian Layne of Idaho
Purchasing Manager Attn: Cass Cook
33 E Broadway Ave P O Box 1005
Meridian, ID 83642 Nampa, ID 83653
208-888-4433 Phone: 208-465-7376
Email: cassOlayneofidaho.com
Idaho Public Works License #C -11303-C-4
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.
10. 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.
11. 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.
12. 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.
13. 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.
14. Reports and Information:
14.1 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.
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14.2 Contractor shall 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
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22. 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.
23. Order of Precedence: The order or precedence shall be the contract agreement,
the Invitation for Bid document, then the winning bidders submitted bid document.
24. Public Records Act: Pursuant to Idaho Code Section 9-335, et seq., information or
documents received from the Contractor may be open to public inspection and copying
unless exempt from disclosure. The Contractor shall clearly designate individual
documents as "exempt" on each page of such documents and shall indicate the basis for
such exemption. The CITY will not accept the marking of an entire document as exempt.
In addition, the CITY will not accept a legend or statement on one (1) page that all, or
substantially all, of the document is exempt from disclosure. The Contractor shall
indemnify and defend the CITY against all liability, claims, damages, losses, expenses,
actions, attorney fees and suits whatsoever for honoring such a designation or for the
Contractor's failure to designate individual documents as exempt. The Contractor's
failure to designate as exempt any document or portion of a document that is released
by the CITY shall constitute a complete waiver of any and all claims for damages caused
by any such release.
25. 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.
26. Approval Required: This Agreement shall not become effective or binding until
approved by the City of Meridian.
CITY OF MERIDIAN
B `
TA Y_ds_ D, AYOR
OS 81,
Dated: 1013/ DOl q ..,
Attest: y
Purch
BY: �` --'
KE I AT %Purchasring Manager
Dated:: �f � a f ( I
77 ACRE PARK PUMPING SYSTEM
Project 10121.d
LAYNE OFMAHO
BY: 111&� / , 4�
CA§`Sbb0K, President
Dated: --Z1 & - r
Departm pro al
BY: JV ,
MIKE BA "ON, P rk Superintendent
Dated: t -1b -1d
page 8 of 10
Attachment A
SCOPE OF WORK
REFER TO INVITATION TO BID PKS-14-10121.d
ALL ADDENDUMS, ATTACHMENTS, AND EXHIBITS included in the
Invitation to Bid Package # PKS-14-10121.d, are by this reference
made a part hereof.
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Attachment B
MILESTONE / PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed
$39,282.00.
MILESTONE DATES/SCHEDULE
Milestone 1 Substantial Completion 60 (sixty) days from Notice to Proceed
Milestone 2 TFinal Completion 90 (ninety) days from Notice to Proceed
PRICING SCHEDULE
Contract includes furnishing all labor, materials, equipment, and incidentals as required for the
77 ACRE PARK PUMPING SYSTEM per IFB PKS-14-10121.d
Total Bid Amount: ................... $39,282.00
NOT TO EXCEED TOTAL: ....................... $2$2.00
Travel expenses, if applicable, will be paid at no more than the City of Meridian's
Travel and Expense Reimbursement Policy.
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