Independent Contractor Agreement with Haemker Construction, Inc Splash PadAGREEMENT
FOR
INDEPENDENT CONTRACTOR SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES is made this 28th
day of February , 2007, 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 Haemker
Construction, Inc., hereinafter referred to as "CONTRACTOR", whose business address
is 622 S. Powerline Road, Nampa ID 83686 and whose Public Works Contractor
License # is 14562-C-4 (14).
INTRODUCTION
Whereas, the City has a need for services involving Splash Pad
Equipment Installation ; 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
Exhibit "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
any work which is copyrighted by the Contractor, the City reserves a
SPLASH PAD EQUIPMENT INSTALLATION — page 1 of 11
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 as
provided in Exhibit B "Payment Schedule" attached hereto and by
reference made a part hereof. Contract amount Not -To -Exceed
$183,340.80.
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
SPLASH PAD EQUIPMENT INSTALLATION — page 2 of 11
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, 2007 or (c) unless sooner terminated as provided below or
unless some other method or time of termination is listed in Exhibit 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, 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
SPLASH PAD EQUIPMENT INSTALLATION — page 3 of 11
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 Exhibit 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
SPLASH PAD EQUIPMENT INSTALLATION — page 4 of 11
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 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, Professional 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
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 Idaho 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
SPLASH PAD EQUIPMENT INSTALLATION — page 5 of 11
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.
6.2 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.
6.3 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
Haemker Construction, Inc.
Attn: Jim Haemker
622 S. Powerline Road
Nampa, ID 83686
Idaho Public Works License #: 14562 —C-4
SPLASH PAD EQUIPMENT INSTALLATION — page 6 of 11
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.
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 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.
SPLASH PAD EQUIPMENT INSTALLATION — page 7 of 11
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.
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.
SPLASH PAD EQUIPMENT INSTALLATION — page 8 of 11
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.
23. Approval Required: This Agreement shall not become effective or
binding until approved by the City of Meridian.
CITY OF MERIDIAN
TAMMY de WEERD, MAYOR
Dated:
Attest:
WILLIAM G. BERG, JR., CITY CLERK
Approved as to Content
BY:
KEIT ATT8, PURCHASING AGENT
Dated: '3 / *0 :z
Approved as to Form
CITY ATTORNEY
HAEMKER CONSTRUCTION, INC.
Dated: `�/a e/� as 7
SPLASH PAD EQUIPMENT INSTALLATION —
Department Approval
NAME: Doug Strong
TITLE: Parks Director
Dated:
page 9 of 11
Attachment A
SCOPE OF WORK
All labor, materials, equipment and services indicated or reasonably inferable from the
plans, specifications, general and special conditions, construction permits, addenda for
the Project identified in the Project Manual (Request for Bid) dated July 2006 to the
extent not inconsistent with the terms of the body of this Agreement.
SPLASH PAD EQUIPMENT INSTALLATION — page 10 of 11
Attachment B
PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed
TASK
DESCRIPTION
DATE
AMOUNT
A.
Splash Pad Equipment Installation per Bid dated July
2006 and subsequent Addendums 1 — 4.
$183,340.00
TOTAL
$183,340.00
SPLASH PAD EQUIPMENT INSTALLATION — page 11 of 11