Independent Contractor - 2019 - Merrill Park Playground / Splash Pad / Installation - 7/7/2019CONTRACT FOR DESIGN, SUPPLY AND INSTALLATION OF THE MERRILL
PARK PLAYGROUND AND SPLASH PAD PROJECT
THIS CONTRACT FOR DESIGN, SUPPLY AND INSTALLATION OF THE
MERRILL PARK PLAYGROUND AND SPLASH PAD is made this day of
2019, and entered into by and between the City of Eagle, a municipal corporation
organi under the laws of the State of Idaho, hereinafter referred to as "City", 660 East Civic
Lane, tag1e, Idaho 83616, and Landscape Structures Inc„ hereinafter referred to as "Contractor",
whose business address is 601 7th Street South Delano, MN 55328 and whose Public Works
Contractor License # is 034204 -AA -4.
RECITALS
WHEREAS, the City has a need for services involving Playground, Design & installation
at Merrill Park; 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
Contract 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 Contract, 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 Contract 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
Contract and that are in effect at the time ofperformance of this Contract. 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 Contract, Contractor makes no other
warranties, either express or implied, as part of this Contract.
1.4 Services and work provided by the Contractor at the City's request under this Contract
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
Exhibit "B" 'Payment Schedule" attached hereto and by reference made a part hereof
for the Not -To -Exceed amount of $982396.26.
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 Council. 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 Contract. Payment of all taxes
and other assessments on such sums is the sole responsibility of Contractor.
2.3 Except as expressly provided in this Contract, 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 Contract including, but not limited to,
meals, lodging, transportation, drawings, renderings or mockups. Specifically,
Contractor shall not be entitled by virtue of this Contract 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 Contract 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 Exhibit "A".
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3.2 Should Contractor default in the performance of this Contract or materially breach any
of its provisions, City, at City's option, may terminate this Contract by giving written
notification to Contractor.
3.3 Should City fail to pay Contractor all or any part of the compensation set forth in
Exhibit "B" of this Contract on the date due, Contractor, at the Contractor's option,
may terminate this Contract if the failure is not remedied by the City within thirty (30)
days from the date payment is due.
4. Liquidated Damages
Construction shall begin within 30 (thirty) calendar days from date of the Notice to
Proceed sent by the City. 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 $200 (two 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.
Upon receipt of a Notice to Proceed, the Contractor shall have 180 (one hundred and
eighty) 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 $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 of such delay and not
be construed as a penalty. See Milestones listed in the Payment Schedule for Substantial
Completion.
5. Termination
5.1 If, through any cause, Contractor, its officers, employees, or agents fails to fulfill in a
timely and proper manner its obligations under this Contract, violates any of the
covenants, agreements, or stipulations of this Contract, falsifies any record or
document required to be prepared under this Contract, 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 Contract is in the best interest of City, the
City shall thereupon have the right to terminate this Contract 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 Contract at any time by giving at least sixty (60) days notice to City.
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In the event of any termination of this Contract, all finished or unfinished documents,
data, and reports prepared by Contractor under this Contract 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.
5.2 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 Contract 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 Contract and shall not relieve
Contractor of its liability to the City for damages.
6. Independent Contractor
6.1 In all matters pertaining to this Contract, 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 Contract shall be made by the City.
6.2 Contractor, its agents, officers, and employees are and at all times during the term of
this Contract shall represent and conduct themselves as Independent Contractors and
not as employees of the City.
6.3 Contractor shall determine the method, details and means of performing the work and
services to be provided by Contractor under this Contract. Contractor shall be
responsible to City only for the requirements and results specified in this Contract and,
except as expressly provided in this Contract, shall not be subjected to City's control
with respect to the physical action or activities of Contractor in fulfillment of this
Contract. If in the performance of this Contract any third persons are employed by
Contractor, such persons shall be entirely and exclusively under the direction and
supervision and control of the Contractor.
7. Sub — Contractors
Contractor shall require that all of its sub -contractors hired to perform any work under
this Contract shall be licensed public works contractors as required by Title 54, Chapter
19, Idaho Code.
8. Removal of Unsatisfactory Employees
The Contractor shall only furnish employees who are competent and skilled for work
under this contract. If, in the opinion of the City, an employee of the Contractor is
MERRILL PARK PLAGROUND AND SPLASH PAD Page 4 of 12
incompetent or disorderly, refuses to perform in accordance with the tettiis and
conditions of the contract, threatens or uses abusive language while on City property, or
is otherwise unsatisfactory, that employee shall be removed from all work under this
Contract.
9. Indemnification and Insurance
9.1 CONTRACTOR shall indemnify and save and hold harmless City and it's elected
officials, officers, employees, agents, and volunteers 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 Contract 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 vecifically agrees that it will maintain. throughout the
term of this Contract liability insurance, in which the City sh411 be named an
additional insured in the minimum amounts as follow: General Liability One Million
Dollars ($1 per incident or occurrence, Automobile Liability insurance One Million
Dollars ($1 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 Contract 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 Contract. 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 Clerk's Office, 660 East
Civic Lane, Eagle, Idaho 83616.
9.2 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.
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9.3 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.
9.4 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.
9.5 All insurance coverages for subcontractors shall be subject to all of the insurance and
indemnity requirements stated herein.
9.6 The limits of insurance described herein shall not limit the liability of the Contractor
and Contractor's agents, representatives, employees or subcontractors.
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 Contract by the party so failing to perform.
11. Bonds
Payment and Performance Bonds are required on all Public Works Improvement Projects
per the Idaho Standards for Public Works Construction ("ISPWC"), which by this
reference are made a part hereof. Contractor is required to furnish faithful performance
and payment bonds in the amount of 100% of the Contract price issued by surety
licensed to do business in the State of Idaho. In the event that the Contract is
subsequently terminated for failure to perform, the CONTRACTOR and/or surety will be
liable and assessed for any and all costs for the re -procurement of the contract services.
12. Warranty
All construction and equipment provided under this Contract shall be warranted for 1
year from the date of the City of Eagle acceptance per the ISPWC and any modifications,
which by this reference are made a part hereof. All items found to be defective during a
warranty inspection and subsequently corrected will require an additional one (1) year
warranty from the date of City's acceptance of the corrected work. Work must be
inspected by a CPSI.
Contractor warrants that the installed playground equipment meets all safety
requirements and that Contractor has had the playground equipment inspected by a
Certified Playground Inspector. Contractor shall submit any and all reports of the
Playground Inspector upon City's request.
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13. 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 Contract.
14. Taxes
The City of Eagle is exempt from Federal and State taxes and will execute the required
exemption certificates for items purchased and used by the City. Items purchased by the
City and used by a contractor are subject to Use Tax. All other taxes are the
responsibility of the Contractor and are to be included in the Contractor's Bid pricing.
15. Eagle Sewer District Specifications
Any questions or concerns relating to sanitary sewer shall be directed to Eagle Sewer
District
16. ACHD
If required, Contractor shall be responsible for coordinating with the City to obtain
appropriate ACHD permit(s) and will reimburse the City for fees, fines, or penalties City
incurs due to Contractor's violation of any ACHD policy. City shall certify to ACHD that
Contractor is authorized to obtain a Temporary Highway and Right -of -Way Use Permit
from ACHD on City's behalf. The parties acknowledge and agree that the scope of the
agency granted by such certification is limited to, and conterminous with, the term and
scope of this Contract. Any questions or concerns relating to storm water shall be
directed to ACHD.
17. Reports and Information
17.1 At such time and in such forms as the City may require, there shall be furnished to
the City such statements, records, records, reports, data and information as the City
may request pertaining to matters covered by this Contract.
17.2 Contractor shall maintain all writings, documents and records prepared or compiled
in connection with the performance of this Contract for a minimum of four (4) years
from the termination or completion of this or Contract. This includes any
MERRILL PARK PLAGROUND AND SPLASH PAD Page 7 of 12
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.
18. 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 Contract. 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 Contract.
19. Publication, Reproduction and Use of Material
No material produced in whole or in part under this Contract 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 Contract.
20. Advice of Attorney
Each party warrants and represents that in executing this Contract. It has received
independent legal advice from its attorney's or the opportunity to seek such advice.
21. Attorney Fees
Should any litigation be commenced between the parties hereto concerning this Contract,
the prevailing party shall be entitled, in addition to any ether 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 sperate contract between the parties
and shall survive any default, termination or forfeiture of this Contract.
22. Construction and Severability
If any part of this Contract is held to be invalid or unenforceable, such holding will not
affect the validity or enforceability of any other part of this Contract so long as the
remainder of the Contract is reasonably capable of completion.
23. Waiver of Default
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Waiver of default by either party to this Contract shall not be deemed to be waiver of
any subsequent default. Waiver or breach of any provision of this Contract 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 Contract unless this Contract is modified as
provided above.
24. Entire Contract
This Contract contains the entire Contract of the parties and supersedes any and all other
Contract or understandings, oral of written, whether previous to the execution hereof or
contemporaneous herewith.
25. 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 Contract
except upon the prior express written consent of City.
26. Payment Request
Payment requests shall be submitted to City of Eagle Clerk's Office. The Project
Manager will compare the invoice against the Payment Schedule in the Contract for
compliance. Upon approval that the work has been done and is in compliance with the
Contract, the Project Manager will approve the pay request for processing. Payments
through the City are processed bi-monthly and approved by the Eagle City Council. The
Contractor can expect the City to issue and mail payment within fifteen (15) business
days after approval by the Eagle City Council.
27. Cleanup
Contractor shall keep the worksite clean and free from debris. At completion of work and
prior to requesting final inspection, the Contractor shall remove all traces of waste
materials and debris resulting from the work, Final payment will not be made if cleanup
has not been performed.
28. 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 government.
29. Notices
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Any and all notices required to be given by either of the parties hereto unless otherwise
stated in this Contract, shall be in writing and by deemed communicated when mailed in
the United States mail, certified, return receipt requested, addressed as follows:
CITY CONTRACTOR
City of Eagle Landscape Structures Inc.
660 East Civic Lane Attn: Contract Administrator
Eagle, ID 83616 601 7th Street S.
208-939-6813 Delano, MN 55328
Email: elaineharkess@playlsi.com
30. Approval Required
This Contract shall not become effective or binding until approved by the City of Eagle.
IN WITNESS WHEREOF, the City and Contractor have executed this Contract as of
the date first above written.
CITY OF EAGLE
BY:
Mayor Stan Ridgeway
ATTEST:
BY:
Sharon K. Bergmann, City Clerk
LANDSCAPE STRUCTURES INC.
By:
Elaine Harkess, Contract Administrator
MERRILL PARK PLAGROUND AND SPLASH PAD
Page 10 of 12
EXHIBI
(Scope of Work)
In addition to other obligations that Contractor has under this Agreement, Contractor also agrees
to provide the following Scope of Work:
1. Remove & haul offold playground and playground surfacing.
2. Demo out concrete 2500 square feet, 1570 sq ft of existing splash pad and operational
pumps and piping and a 9' x 53' plus 9' x 47' sidewalks for new splash pad area. Remove
and dispose of the existing underground vault backfill with dirt and sod. (removal of iron
fence by city).
3. Sprinkler lines will be capped, but the new sprinkler heads and sprinkler layout will be the
City's responsibility.
4. Supply and spread out 14" deep drain rock 15,510 square total.
5. Provide and install Aquatix Splash Pad Equipment 18496-A3 w/Set and pour 4 concrete
bench seats with steel sacked finish materials, pump, and 6281 square feet of splash pad and
sidewalks 4 inches of concrete with saw cuts or tooled joints for concrete expansion (see
attached splash pad concept).
6. Provide and install (6) Skyways 14x14 Shade Structures.
7. Provide and install Flexground Bonded Rubber.
8. Coordinate all work with City of Eagle and any other contractors that maybe on site, and
cooperate to the fullest extent to see that the work is completed in a timely and workmanship
like manner
9. Contractor shall ensure that work shall be conducted under the supervision of an
experienced playground, splash pad, and bonded rubber installer.
MERRILL PARK PLAGROUND AND SPLASH PAD Page 11 of 12
Exhibit B
MILESTONE / PAYMENT SCHEDULE
A. Total and complete compensation for this contract shall not exceed $982,396.26
MILESTONE DA IES/SCHEDULE
Milestone 2 Final-'--`''� 210 ..o`-`.`.`'t'/``e~`
'-Days
PRICING SCHEDULE
Contract includes furnishing ;. .,.o/ materials, equipment, and incidentalas required for the above-
named project
NOT TO EXCEED CONTRACT ^''.`.. $982,396,26
Contract is a not to exceed amount. Line item pricing below will be used for invoice verification and any
additional increases or decreases in work requested by eity. The City will pay the contractor based 011
actual quantities of each item of work in accordance with the contract documents.
Contract Pricing Schedule
Item No
1
3
i
,
[
| `
10
___
..
12
13
14
15
MERRILL PARK PLAGROUND AND SPLASH PAD
Quantity Unit
Unit P'``
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