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AGREEMENT BETWEEN PROSSER & SONS AND CITY OF MOSCOW, IDAHO FOR INSTALLATION OF KIWANIS PARK PLAYGROUND EQUIPMENT THIS AGREEMENT BETWEEN PROSSER & SONS AND CITY OF MOSCOW, IDAHO FOR INSTALLATION OF KIWANIS PARK PLAYGROUND EQUIPMENT, entered into this i1tJ.. day of Hili , 2010, between Prosser & Sons, a sole proprietorship of the State of Washington, 5544 N. Drumheller, Spokane, Washington, 99205 (hereinafter "'CONTRACTOR"), and the City of Moscow, Idaho, a Municipal Corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter referred to as "CITY") W I T N E S S E T H: WHEREAS, CITY has accepted a bid by CONTRACTOR for the installation of playground equipment consisting of pre-school playground with four swings, a play house, a crawl tube, two spring toys, a climber, and a modular play system manufactured by MIRACLE and the associated ADA compliant engineered wood fiber system, all enclosed within a plastic interlocking border system, to be installed in Kiwanis Park in Moscow, Idaho (hereinafter "Project"); and WHEREAS, CONTRACTOR has shown itself to be the lowest, responsible enterprise to submit a quote for such Project; and WHEREAS, CITY desires to contract with CONTRACTOR for the installation; NOW, THEREFORE, City and Contractor, in consideration of the mutual covenants and stipulations set out, do hereby agree as follows: ARTICLE I RETENTION OF CONTRACTOR CITY agrees to engage CONTRACTOR, and CONTRACTOR, upon execution of this Agreement, shall proceed with the work described in paragraph II. ARTICLE II SERVICES CONTRACTOR agrees to provide the following services to CITY pursuant to this Agreement, in a good and workmanlike manner, utilizing best practices and safety measures: Construction/installation of Kiwanis Park playground equipment consisting of pre school playground with four ( 4) swings, a play house, a crawl tube, nvo spri.ng toys, KlW ANIS PARK PLA YGROlJND PAGE 1 OF5 .2010·20 ---PAGE BREAK--- a climber, and a modular play system manufactured by MIRACLE and the associated ADA compliant engineered wood fiber system, all enclosed within a plastic interlocking border system. During construction/installation, all playground equipment and materials being installed shall be protected by a substantial fence until Project completion. ARTICLE III TIME All the above items shall begin on or after May 24, 2010 and shall be substantially completed on or before June 11, 2010. ARTICLE IV COMPENSATION CITY shall pay to CONTRACTOR the total sum not to exceed nine thousand nine hundred thirty three and ten one/hundredths dollars ($9,933.10) for services to be performed pursuant to this Agreement. This sum, minus six percent retention shall be paid upon the acceptance by the City of completion of the Project. CITY and CONTRACTOR agree that CITY shall retain six percent of the total Project one thousand five hundred twenty three and ten one/hundredths dollars [$1523.10]) until a tax release is received from the State of Idaho Tax Commission by CITY, after which CITY, in a timely manner, shall pay to CONTRACTOR such six percent sum. ARTICLEV TERMINATION If CITY determines that services being rendered are not adequate or suitable to meet the needs of CITY, CITY may terminate this Agreement by providing fifteen days written notice to CONTRACTOR. If this Agreement is terminated in such manner, the sole liability of CITY for such termination shall be to CONTRACTOR for services rendered until the time of termination, which payment shall be determined based on a percentage of total work to be performed under this Agreement. ARTICLE VI REPORTS CONTRACTOR will provide a weekly status report to the City Parks/Facilities Manager, Roger Blanchard, on the progress of the program. PLAYGROUND lNST ALLATION CONTRACT (20 1 0) PAGE20F5 ---PAGE BREAK--- ARTICLE VII WARRANTY CONTRACTOR does hereby warrant against all defects in workmanship in its installation of the playground for a period of one year from the date of substantial completion. ARTICLE VIII COMPLIANCE WITH LAWS a. CONTRACTOR agrees that it shall conduct its operations pursuant to this Agreement in conformance with all applicable laws, ordinances and regulations of all governmental and regulatory agencies having jurisdiction. b. CONTRACTOR agrees to use, handle, store and dispose of any and all toxic substances used in the performance of this Agreement in accordance with applicable federal, state, city and local laws, statutes, and regulations, and further agrees to indemnify and hold CITY harmless from any liability resulting from the use, handling, storage or disposal of toxic substances. ARTICLE IX INDEPENDENT CONTRACTOR The parties warrant by their signature that no employer-employee relationship is established between CONTRACTOR and CITY by the terms of this contract. 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, or social security (FICA) withholding. ARTICLE X 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 it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State ofldaho, in and for the County ofLatah. ARTICLE XI INDEMNIFICATION CONTRACTOR waives any all claims and recourse against 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 CONTRACTOR's performance of this Agreement except for liability arising out of the sole negligence of CITY or its officers, agents or employees. Further, CONTRACTOR shall indemnify, hold harmless, and defend CITY against any and all claims, demands, damages, costs, expenses or liability arising out of CONTRACTOR's performance of this Agreement except for liability arising out of the sole negligence of CITY or its officers, agents or employees. PLAYGROUND INSTALLATION CONTRACT (2010) PAGE3 OF 5 ---PAGE BREAK--- ARTICLE XII MODIFICATION AND ASSIGNABILITY OF CONTRACT 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 without the prior written consent and express authorization of CITY. Any subcontractor or assignee so authorized shall be bound by all of the terms and conditions of this Agreement as if named specifically herein. ARTICLE XIII INSURANCE CONTRACTOR warrants that it has obtained, and will maintain at its expense for the duration of this Agreement, statutory worker's compensation coverage, employer's liability and comprehensive general liability insurance coverage for its principals and employees for the services to be performed hereunder. The comprehensive general liability insurance shall have a coverage limit of at least FIVE THOUSAND DOLLARS ($500,000.00) per occurrence, and ONE MILLION DOLLARS ($1,000,000.00) aggregate. 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 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. Such insurance shall be issued by an insurance carrier licensed to do business in the state ofldaho. This Agreement shall be effective the day and year first above written. TOR: CITY: City Of Moscow, Idaho PLAYGROUND INSTALLATION CONTRACT (2010) JULY 12 1887 PAGE40F 5 ---PAGE BREAK--- ACKNOWLEDGMENT sTATE oF LUash/nqtof\._, ) ) ss. County of \A 2 I ) ; 1- m V'v ) On this _ _tiY of for said State, personally appeare 0 ( fJ D e c of rosser & Sons, known to me to be the person whose name is subscribed to the foregoing and acknowledged to me that he executed the same; and that he is the duly authorized representative of Prosser & Sons and has specific legal authority to bind Prosser & Sons to this Agreement. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year hereinabove written. PLAYGROUND INSTALLATION CONlRACT (20 1 0) PAGE 50F5