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CONTRACT THIS AGREEMENT, made and entered into this day of 1996, by and between Pacific Playground, Inc. hereinafter called the "Contractor." and the City of Moscow, a Municipal Corporation of the State of Idaho, hereinafter called the "City. • WITNESSETH THAT: WHEREAS, pursuant to the invitation of the City, extended through an officially published "REQUEST FOR PROPOSALS FOR DESIGN, MATERIALS AND INSTALLATION OF PLAYGROUNDS AT JIM LYLE/ROTARY PARK" (RFP), the Contractor did, in accordance therewith, on the 10th day of April, 1996, file with the City a proposal containing an offer which was invited by said RFP; and WHEREAS, the said RFP requested responses containing options and alternatives entitling the City to accept all or portions of the proposal; and WHEREAS, the City has heretofore determined that said proposal was the best submitted for certain items: NOW, THEREFORE, the parties hereby agree as follows: I. Compliance with RFP That the Contractor shall comply in every way with the provisions and requirements of that certain RFP entitled "REQUEST FOR PROPOSALS FOR DESIGN, MATERIALS AND INSTALLATION OF PLAYGROUNDS AT JIM LYLE/ROTARY PARK. " II. Contract Documents The following contract documents are hereby made a part of and incorporated into this Agreement as though fully set forth herein: A. Exhibit 1: REQUEST FOR PROPOSALS FOR DESIGN, MATERIALS AND INSTALLATION OF PLAYGROUNDS AT JIM LYLE/ROTARY PARK, including all appendices B. Exhibit 2: The amended proposal of the Contractor, which was submitted on May 9, 1996. the original or conformed copy C. Exhibit 3: Contractor's certificates of insurance Ill. Scope The City hereby accepts Contractor's proposal for the design, provision and installation of playground equipment for the playground for "preschool age" and "school age• children as defined in the RFP. 96-26 ---PAGE BREAK--- IV. Consideration In consideration of the faithful compliance with the terms and conditions of this Agreement (including the specifications), the City shall pay to the Contractor for provision and installation of the playground for "preschool age" and "school age" children, the total sum of Eighteen Thousand Eight Hundred Ninety Four Dollars ($18,894.00) which sum shall be paid upon completion of installation and acceptance thereof by the City. Before payment will be made by the City, the Contractor shall file with the Clerk a notarized affidavit that all labor, materials, and other costs including any subcontractor labor, materials, and other costs, have been paid in full, and further that such affidavit shall have as an exhibit thereto, receipts or such other documentation evidencing such satisfaction. Of such sum, $3,854.00 shall be allocated to preschool equipment and $1,259.00 shall be allocated to preschool installation. In addition, $10,858.00 shall be allocated to "school age" equipment, and $2,923.00 shall be allocated to "school age" installation. V. Completion The Contractor shall complete the project, including installation and clean up as follows within 45 days from the date the City issues a "Notice to Proceed. " VI. Communications Such communications as are required by this contract shall be satisfied by mailing or by personal delivery to the parties at the following address: Contractor: City: VII. Full Agreement Pacific Playground, Inc. P.O. Box 64068 Tacoma, WA 98464 City of Moscow Director of Parks and Recreation P.O. Box 9203 Moscow, ID 83843 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 change order executed in conformance herewith or by written agreement signed by the parties hereto. The Contractor may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder without the prior written consent and express authorization of the City of Moscow. Any subcontractor or assignee shall be bound by all of the terms and conditions of this Agreement as if named specifically herein. This contract and the incorporated documents shall constitute the full agreement between the parties; any amendments shall be made in writing. ---PAGE BREAK--- VII !.Independent Contractor The parties warrant by their signature that no employer-employee relationship is established between the Contractor and the City by the terms of this contract. It is understood by the parties hereto that the Contractor is an independent contractor and as such neither it nor its employees, if any, are employees of the City for purposes of tax, retirement system, or social security (FICA) withholding. IV. Contractor's Insurance The Contractor warrants that it has obtained and will maintain at its expense for the duration of this Agreement, applicable statutory worker's compensation coverage, employer's liability and comprehensive general liability insurance coverage for its principals and employees for services to be performed hereunder. Applicable limits of such insurance shall be approved by the City and shall be evidenced by certificates. X. Indemnification Contractor assumes the sole responsibility for the safety and protection of the premises and of employees and other persons, including subcontractors and employees thereof, and assumes liability for any injury or damages occurring on account of the performance of the work under this Agreement, whether due to the negligence, fault or default of the Contractor or subcontractor(s) or not. Such liability of Contractor under this Agreement is absolute and is not dependent on the question of negligence on its part or on the part of its subcontractors, agents, servants or employees. The Contractor waives any and all claims and recourse against the City, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to the Contractor's performance of this Agreement except for liability arising out of the sole negligence of the City or its officers, agents or employees. Further, the Contractor shall indemnify, hold harmless and defend the City against any and all claims, demands, damages, costs, expenses or liability arising out of the Contractor's performance of this Agreement, including the performance of subcontractors, except for liability arising out of the sole negligence of the City or its officers, agents or employees. XI. Permits and Licenses The Contractor shall obtain all permits and licenses required in the prosecution of the work, and the costs of such permits and licenses shall be borne by Contractor. Contractor shall not allow unlicensed individuals to perform any work pursuant to this Agreement, when such work is required by statute, regulations or ordinance to be performed by licensed individuals. XII. Standard of Performance Contractor shall do the work required by this Agreement in a good and well crafted manner, and shall superintend the work to assure that such work is performed to such standard. ---PAGE BREAK--- XIII. Termination of Agreement This Agreement may be terminated as follows; if the City determines that the Contractor: 1 . Fails to begin installation under the Agreement within the time specified herein or any "Notice to Proceed;" or 2. Performs the installation unsuitably; or 3. Discontinues the prosecution of the installation; or 4. Fails to provide equipment and materials in conformance with the contract documents; or 5. Is guilty of a substantial violation of any provisions of the contract. In any of the foregoing events, the City may, without prejudice to any other right or remedy, give notice to the Contractor of such delay, neglect, or default. If the Contractor, within a period of ten days after such notice does not proceed in accordance therewith, then the City shall have full power and authority, without violating the contract, to take the prosecution of the installation from the Contractor. The City may appropriate or use any or all materials and equipment on grounds as may be suitable and acceptable and may enter into an agreement for the completion of said contract according to the terms and provisions thereof, or use such other methods as may be required for the completion of the contract in an acceptable manner. Costs and charges incurred by the City, together with the cost of completing the installation under the contract, will be deducted from any moneys due or which may become due the Contractor. If such expense exceeds the sum which would have been payable under the contract, then the Contractor shall be liable and shall pay to the City the amount of such excess. XIV. 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 the Contractor or its subcontractors shall be deemed material and shall subject the Contractor to termination of this Agreement for cause. XV. Construction and Venue It is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning this Agreement, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. XVI. 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. ---PAGE BREAK--- IN WITNESS WHEREOF, said Contractor and City have caused this Agreement to be executed on the day and year first above written. Contractor: PACIFIC PLA YGROUNO, INC. City of Moscow, Idaho: ---PAGE BREAK--- ACKNOWLEDGEMENTS On this day of J E, e , Hle, a Notary Public of the State of iclaho, personally appeared before me A , known to me to be the person described in the above document and ac nowledge to me that s/he executed the same, On this day of , 19_, before me, a Notary Public of the State of Idaho, personally appeared before me , known to me to be the person described in the above document and acknowledge to me that s/he executed the same. Notary Public, residing at _ My Commission Expires: _ On this / T:day of :tlr , 19 before me, a Notary Public of the State of Idaho, personally appeared birlore me 2/:il