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AGREEMENT FOR PROFESSIONAL SERVICES RELATED TO HAMILTON-LOWE AQUATICS CENTER SCS RETROFIT BETWEEN CITY OF MOSCOW, IDAHO AND WIDTEW ATER WEST INDUSTRIES, LTD. THIS AGREEMENT FOR PROFESSIONAL SERVICES RELATED TO HAMILTON-LOWE AQUATICS CENTER SCS RETROFIT, made and entered into this 2- day of ~a ~f , 2013, by and between City of Moscow, Idaho, a municipal corporation of the State ofi~o. 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"), and Whitewater West Industries, Ltd., 6700 McMillan Way, Richmond, BC, Canada, V6W 117 (hereinafter "CONTRACTOR"). WITNESSETH: WHEREAS, CITY intends to contract for SCS Retrofit Work (hereinafter "PROJECT") which PROJECT is more specifically described hereinbelow; NOW, THEREFORE, it is agreed, for and in consideration of the mutual covenants and promises between the parties hereto, as follows: SECTION I: PROJECT Description/Scope of Work: PROJECT work shall include painting all metal parts on the existing SCS play structure; removing existing parts required to accommodate installation of replacement parts (demolition and removal); painting of plastic skirts below the platform; and start-up and balancing of the water flow to SCS play structure toys to insure they are operating properly at the City-owned Hamilton-Lowe Aquatics Center. SECTION II: Compensation: A. CONTRACTOR shall perform all work necessary to complete the PROJECT for an amount not to exceed Twenty Nine Thousand One Hundred Five and 65/100 Dollars ($29, 105.65). B. Other Considerations Regarding Fees and Costs. CONTRACTOR shall be paid Fifty Percent (Fourteen Thousand Five Hundred Fifty Two and 83/100 Dollars [$14,552.83]) of the not to exceed PROJECT cost upon completion of Fifty Percent (50%) of the PROJECT work. The determination of percent of PROJECT work completed shall be made by CITY. CONTRACTOR shall be paid the remaining fees owing to CONTRACTOR, up to Fourteen Thousand Five Hundred Fifty Two and 82/100 Dollars ($14,552.82) within thirty AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE I OF7 ---PAGE BREAK--- (30) days following completion of the PROJECT work and acceptance of the PROJECT work by CITY. Shipping terms: FOB location of Job Site. Import Duty and Taxes are not included and are to be added to invoices unless Tax Exempt Certificate is provided by CITY. SECTION III: CONTRACTOR' s Responsibilities: CONTRACTOR shall complete the entire work on the PROJECT. Such work shall be conducted in a good and workmanlike manner which meets or exceeds industry standards. SECTION IV: CITY's Responsibilities: CITY, at no extra charge to CONTRACTOR, shall: 1. Provide CONTRACTOR with its color selections with enough advance notice for CONTRACTOR to procure the necessary materials and equipment; 3. Obtain alJ licenses and permits, as required; 4. Provide inspections as required; 5. Provide continuous access for CONTRACTOR during the term of this Agreement; 6. Provide pool, slide and play structure water drainage as required; 7. Allow for two days travel where a specific number of days is provided in CONTRACTOR'S bid; 8. Provide water pressure adequate for PROJECT; 9. Provide one hundred twenty by thirty (120 x 30) amp electrical supply during PROJECT; 10. Provide access to PROJECT site for all equipment necessary trucks, cranes, forklifts, manlifts, scaffold, etc.); 11. Provide convenient and adequate area for equipment and for storage of equipment; 12. Provide protection for equipment against paint over-spray, debris, etc.; 13. Provide adequate security to protect materials and equipment; 14. Dispose of all waste materials; and 15. Allow not Jess than seventy two (72) hours at least sixty five degrees Fahrenheit (65°) for curing. SECTIONV: PROJECT Schedule: CONTRACTOR shall complete the PROJECT on or before October 10, 2013. In the event of unavoidable delays due to weather, shipping delays or other circumstances beyond CONTRACTOR's control, CONTRACTOR shalJ be granted an extension equal to the time elapsed during such delay. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE20F7 ---PAGE BREAK--- SECTION VI: Independent CONTRACTOR: The contracting parties warrant by their signature that no employer/employee relationship is established between CONTRACTOR and CITY by the terms of this Agreement. It is understood by the parties hereto that CONTRACTOR is an independent contractor and as such neither it nor its employees, if any, are employees of CITY for purposes of tax, retirement system, social security (FICA) withholding. SECTION VII: Termination: A. Termination of Agreement. This Agreement may be terminated by CONTRACTOR upon thirty (30) days' written notice, should CITY fail to substantially perform in accordance with its terms through no fault of CONTRACTOR. CITY may terminate this Agreement upon thirty (30) days' written notice without cause and without further liability to CONTRACTOR except as designated by this section. In the event of termination, CONTRACTOR shall be paid for services performed to termination date, including direct expense and including a percentage of the fixed fee based upon the work completed. B. Termination of PROJECT. If any portion of PROJECT covered by this Agreement shall be suspended, abated, abandoned, or terminated, CITY shall pay CONTRACTOR for the services rendered to the date of such suspended, abated, abandoned, or terminated work; the payment to be based, insofar as possible, on the amounts established in this Agreement or, where the Agreement cannot be applied, the payment shall be based upon a reasonable estimate as mutually agreed upon between the two parties as to the percentage of the work completed. SECTION VIII: Insurance: A. If, at any time, a surety on any such bond is declared as bankrupt or loses its right to do business in the State of Idaho or is removed from the list of surety companies accepted on Federal bonds, the CONTRACTOR shall, within ten ( 10) days after notice from CITY to do so, substitute an acceptable bond (or bonds) in such form and sum signed by such other surety or sureties as may be satisfactory to CITY. The expense of such replacement bonds shall be borne by the CONTRACTOR. No further payments by CITY pursuant to this Agreement shall be deemed due nor shall be made until the new surety or sureties shall have furnished an acceptable bond to CITY. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE) 0F7 ---PAGE BREAK--- B. 1. The CONTRACTOR sha11 not commence work until he/she has obtained all insurance required under this section or until he/she has satisfied CITY in this respect; nor shall he/she allow any subcontractor to commence work until such subcontractor has also obtained such required insurance applicable to such subcontractor's work. The CONTRACTOR shall maintain such required insurance coverage throughout the term of this Agreement and will hold CITY harmless and shall indemnify CITY for any losses arising out of the CONTRACTOR's operations, including any contingent liability arising therefrom. The cost of such insurance shall be borne by the CONTRACTOR. The CONTRACTOR shall furnish copies of all insurance policies and/or certificates of insurance to CITY at the time of execution of this Agreement. Each policy shall include a provision to the effect that it shall not be subject to cancellation, or reduction in the amounts of its liabilities, or any other material change, until notice has been given in writing to CITY and the Parks and Facilities Manager not less than fifteen (15) days prior to such action. CONTRACTOR shall further cause CITY to be named as an additional insured on all applicable insurance policies. 2. The CONTRACTOR shall take out and maintain, during the term of this Agreement, statutory worker's compensation insurance for all employees who will work on this PROJECT, and if any work is subcontracted, the CONTRACTOR shall require the subcontractor similarly to provide such insurance for all of the subcontractor s employees unless they are included under the protection afforded by the CONTRACTOR. 3. The CONTRACTOR shall take ouL and maintain during the term of this Agreement comprehensive public and general liability insurance. The comprehensive public and general liability insurance shall have, at a minimum, a coverage limit of at least Five Hundred Thousand Dollars ($500,000) per occurrence, and One Million Dollars ($1,000,000) aggregate. Policies containing deductible clauses will not be acceptable. SECTION IX: Warranty: CONTRACTOR warrants to CITY a complete one year limited warranty on defects m workmanship and materials (excluding fading and rust below water level). SECTIONX: Hold Harmless/Indemnification: In addition to other rights granted CITY by the Contract Documents, CONTRACTOR shall indemnify and save harmless the CITY, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damages received or sustained by any person, persons, or property on account of the operations of CONTRACTOR or its subcontractors; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE40F7 ---PAGE BREAK--- omission, neglect, or misconduct of CONTRACTOR or its subcontractors; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims or amounts arising or recovered under the Workmen's Compensation Act or any other Jaw, ordinance, order or decree. SECTION XI: Conflict of Interest: CONTRACTOR covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the PROJECT which would conflict in any manner or degree with the performance of its services hereunder. CONTRACTOR further covenants that, in performing this Agreement, it will employ no person who has any such interest. Should any conflict of interest arise during the performance of this Agreement, CONTRACTOR shall immediately disclose such conflict to the PROJECT Engineer/Engineer and City. SECTION XII: Entire Agreement. Modification And Assignability: This Agreement contains the entire agreement between the parties, and no statements, promises, or inducements made by either party, or agents of either party are valid or binding unless contained herein. This Agreement may not be enlarged, modified or altered except upon written agreement signed by the parties hereto. CONTRACTOR may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder other than as contemplated by this Agreement, without the prior written consent and express authorization of CITY. SECTION XIII: Adherence To Law Required: All applicable local, state and federal statutes and regulations are hereby made a part of this Agreement and shall be adhered to at all times. Violation of any of these statutes or regulations by CONTRACTOR shalJ be deemed material and shall subject CONTRACTOR to termination of this Agreement for cause. No pleas of misunderstanding or ignorance on the part of CONTRACTOR will in any way serve to modify the provisions of this requirement. CONTRACTOR and its surety shall indemnify and save harmless CITY and its employees, agents, engineers and representatives against any claim or liability arising from or based on the violation of any such laws, codes, ordinances, or regulations, whether by CONTRACTOR, CONTRACTOR' s employees, or its subcontractors. SECTION XIV: Non-Discrimination: CONTRACTOR shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, creed, political ideals, sex, sexual orientation, age, marital status, physical or mental handicap, or national origin. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE50F7 ---PAGE BREAK--- SECTION XV: Legal Fees: In the event either party incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. SECTION XVI: Jurisdiction and Venue: This Agreement shall be construed in accordance with and shall be subject to the laws of the State of Idaho and that the venue of any such action shall be the Second Judicial District of the State of Idaho in and for Latah County. SECTION XVII: Special Warranty: CONTRACTOR warrants Lhat nothing of monetary value has been given, promised or implied as remuneration or inducement to enter into this Agreement. CONTRACTOR further declares that no improper personal, po.litical or social activities have been u ed or attempted in an effort to influence the outcome of the competition, discussion, or negotiation leading to the award of this Agreement. Any such activity by CONTRACTOR shall make this Agreement null and void. SECTION XVIII: Communications: Such communications as are required by this Agreement shall be satisfied by mailing or by personal delivery to the parties at the following address: Contractor: Scott Heke Whitewater West Industries, Ltd. 6700 McMillan Way Richmond, BC Canada, V 6W 117 AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. City: City Engineer City of Moscow 206 East Third Street P 0 Box 9203 Moscow, Idaho 83843 PAGE 6 0F7 ---PAGE BREAK--- . . SECTION XIX: Execution: IN WITNESS WHEREOF, said CONTRACTOR and the CITY have caused this Agreement to be executed on the day and year first above written. CONTRACTOR CITY City of Moscow, Idaho ATTEST S1e~~~ LJXUA'\ ti l..e.W\ SI Approved As To Form: ,LGQ Roderick Hall, City Attorney ACKNOWLEDGMENT PROVINCEOF · City of_~_ ) ss: ) ) On this tl... day of , 2013, before me, the undersigned, a Notary in and for said State, personally a 1 eared Scott Heke, known to me to be the person whose name is subscribed to the foregoing Agreement and acknowledged to me that he executed the same in his capacity as VP After Sales and Service Department and authorized representative of Whitewater West Industries, Ltd. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE 7 0F7