Independent Contractor Agreement with Irminger Construction for Chemical Feed BuildingAGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES
(CHEMICAL FEED BUILDING -CONSTRUCTION)
PROJECT 10158c
THIS AGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES is made
this 5t" day of June, 2012, 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 Irminger
Construction, Inc., hereinafter referred to as "CONTRACTOR", whose business address
is 3473 Brookside Ln., Boise ID 83714 and whose Public Works Contractor
License # is C-11844-AAA-3-4.
INTRODUCTION
Whereas, the City has a need for services involving the CHEMICAL FEED
BUILDING -CONSTRUCTION; 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 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 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.
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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 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 aNot-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 $524,657.00
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 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)
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September 30, 2012 or (c) unless sooner terminated as provided 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.
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 150(one
hundred fifty) 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 three hundred dollars ($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.
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 anyotheract 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 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
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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,
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CONTRACTOR covenants and agrees to indemnify and save and hold
harmless CITY from and for all such losses, claims, actions, orjudgments 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 CityAccounting, 33 East BroadwayAvenue, 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 perthe ISPWC and the City of Meridian Supplemental
Specifications & Drawings to the ISPWC, which by this reference are made a
part hereof.
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8. Warranty: Contractor must warrant the project per the ISPWC and the City
of Meridian Supplemental Specifications & Drawings to the ISPWC, which by
this reference are made a part hereof.
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
City of Meridian
Purchasing Manager
33 E Broadway Ave
Meridian, ID 83642
208-888-4433
CONTRACTOR
Irminginer Construction, Inc.
Attn: Carllrminger
3473 Brookside Ln.
Boise, ID 83714
Phone: 208-939-1031
Email: irmingerconstruction@msn.com
Idaho Public Works License #
C-11844-AAA-3-4
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. ®iscrimination 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.
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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.
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 remainderof
the Agreement is reasonably capable of completion.
20. Waiver of ®efault: Waiver of default by either party to this Agreement shall
not be deemed to be waiver of any subsequent default. Waiver or breach of
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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.
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.
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CITY OF M RI®IAN
IRII~INGR CONSTRUCTION, INC
BY: °`
CARL IRMINGER, President
Dated
a
Approved by Council ~ ~ ~ 'ter
Attest:
~_
t
E'J'_. HOLMA¢N, CITY CLE
Purchasing Approval
~~._
BY: ,-°
f
KEITATTS, Purchasing Manager
Dated: ~ i ~
City of
E IDIAN~
~ IDAHO
9f
~~°~+ae racps~~
nt ApproJ~al
BY:
WA REN STEWA ,Engineering Manager
Dated: ~~ ~~ ~ ~ ~
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Attachment A
SCOPE OF WORK
R T IIdVITATI N 1° I -1-1015~c
ALL A NU , ATTAWM NT , AN HI I1' included in the
Invitation to id ackage -1-1015~c, are by this reference m ade
a part hereof.
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Attachment B
MILESTONE /PAYMENT SCH®UL
A. Total and complete compensation for this Agreement shall not exceed
$524,657.00.
PRICING SCHEDULE
Contract includ
CHEMICAL FE es furnishing all labor, materials, equipment, and incidentals as required for the
ED BUILDING -CONSTRUCTION per IFB PW-12-10158c
Total Bid Schedule ...................$524,657.00
CONTRACT TOTAL ....................... $524,657.00
Item No. Item Description Unit Unit Price
1. Mobilization and demobilization LS $10,000.00
2 Demolition and removal of site materials,
asphalt paving, concrete, and other
LS
$~ o,ooo.oo
3 Supplying, placing, grading, compaction,
and geotechnical testing for sub-base
LS
$10,000.00
4. Installation of asphalt pavement. LS $10,000.00
5. Yard piping and pull boxes. LS $100,000.00
6 Chemical feed systems, components, and
tanks. LS $100,000.00
7. Chemical feed building. LS $284,657.00
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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