HomeMy Public PortalAbout047-2010 - Park - Spear Corp - new filter at PoolAGREEMENT
THIS AGREEMENT made and entered into this _lgt day of _April_, 2010 and referred to as
Contract No. 47-2010 by and between the City of Richmond, Indiana, a municipal corporation
acting by and through its Board of Parks and Recreation (hereinafter referred to as the "City") and
Spear Corporation, 7 South Walnut, P.O. Box 3, Roachdale, IN 46172 (hereinafter referred to as the
"Contractor").
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to provide new filter system for the splash pool at the Cordell
Municipal Pool.
Certain Bid Specifications dated March 3, 2010, have been made available for inspection by
Contractor, are on file in the offices of the Director of Purchasing for the City and the in the Office of
the Superintendent of Parks and Recreation for the City of Richmond, and are hereby incorporated by
reference and made a part of this Agreement. Contractor agrees to abide by the same.
The response of Contractor to said Bid Specifications is attached hereto as Exhibit A, which Exhibit
is dated March 11, 2010, consists of nine (9) pages, and is also hereby incorporated by reference and
made a part of this Agreement.
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the
provisions, terms, or conditions of this Agreement, this Agreement shall be controlling.
The Contractor shall furnish all labor, material, equipment, and services necessary for any incidental
to the proper completion of all work specified.
No work shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance; and
2. A purchase order has been issued by the Purchasing Department.
SECTION II. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of the
City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the
work.
SECTION III. COMPENSATION
City shall pay Contractor a total sum not to exceed Fifty-three Thousand Six Hundred Forty Dollars
and Zero Cents ($53,640.00) for complete and satisfactory performance of the work required
hereunder.
Contract No. 47-2010
Page 1 of 5
SECTION IV. TERM OF AGREEMENT
This Agreement shall become effective when signed by all parties and shall continue in effect until
completion of the project.
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part,
for cause, at any time by giving at least five (5) working days written notice specifying the effective
date and the reasons for termination which shall include but not be limited to the following:
a. failure, for any reason of the Contractor to fulfill in a timely and proper manner its
obligations under this Agreement;
b. submission by the Contractor to the City of reports that are incorrect or incomplete in any
material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement is
made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make payment for all work performed
prior to the effective date by Contractor, but shall be relieved of any other responsibility herein.
This Agreement may also be terminated by either the City or the Contractor, in whole or in part, by
mutual Agreement setting forth the reasons for such termination, the effective date, and in the case of
partial termination, the portion to be terminated.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or
property or any other claims which may arise from the Contractor's conduct or performance of this
Agreement, either intentionally or negligently; provided, however, that nothing contained in this
Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers,
agents, or employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter
maintain such insurance as will protect it from the claims set forth below which may arise out of or
result from the Contractor's operations under this Agreement, whether such operations by the
Contractor or by any sub -contractors or by anyone directly or indirectly employed by any of them, or
by anyone for whose acts the Contractor may be held responsible.
Coverage Limits
A. Worker's Compensation & Statutory
Disability Requirements
B. Employer's Liability $100,000
C. Comprehensive General Liability
Page 2 of 5
Section 1. Bodily Injury
Section 2. Property Damage
D. Comprehensive Auto Liability
Section 1. Bodily Injury
Section 2. Property Damage
$300,000 each occurrence
$300,000 aggregate
$100,000 each occurrence
$300,000 each person
$300,000 each occurrence
$100,000 each occurrence
E. Comprehensive Umbrella Liability $1,000,000 each occurrence
$1,000,000 each aggregate
SECTION VI. WITHHOLDING, RETAINAGE, AND CLAIMS FOR PAYMENTS
Contractor understands, acknowledges and agrees that pursuant to Indiana Code 36-1-12-13 the City
must provide for the payment of subcontractors, laborers, material suppliers, and those performing
services under a public works contractor and further agrees that in the event Contractor fails to timely
pay any subcontractor, laborer, or material supplier for the performance of services or delivery of
materials under this Agreement that the Board of Parks and Recreation for the City shall withhold
payments in an amount sufficient to pay the subcontractors, laborers, material suppliers, or those
providing services. Contractor further understands, acknowledges, and agrees that the Board shall
proceed with the proper administrative procedures initiated as the result of any claims timely filed by
any subcontractor, laborer, or material supplier under Indiana Code 36-1-12-12.
SECTION VII. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall,
before commencing work under this Agreement, provide the City a certificate of insurance, or a
certificate from the industrial board showing that the Contractor has complied with Indiana Code
Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore
subject to another state's worker's compensation law, Contractor may choose to comply with all
provisions of its home state's worker's compensation law and provide the City proof of such
compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law.
SECTION VIII. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on
behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant
for employment to be employed in the performance of this Agreement, with respect to hire, tenure,
terms, conditions or privileges of employment or any matter directly or indirectly related to
employment, because of race, religion, color, sex, disability, national origin, or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
Page 3 of 5
1. That in the hiring of employees for the performance of work under this Agreement of
any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of
Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex,
national origin or ancestry against any citizen of the State of Indiana who is qualified and
available to perform the work to which the employment relates;
2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or
any sub -contractor shall in no manner discriminate against or intimidate any employee hired
for the performance of work under this Agreement on account of race, religion, color, sex,
national origin or ancestry;
3. That there may be deducted from the amount payable to Contractor by the City under
this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during
which such person was discriminated against or intimidated in violation of the provisions of
the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all monies due or
to become due hereunder may be forfeited, for a second or any subsequent violation of the
terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or
intimidation shall be considered a material breach of this Agreement.
SECTION IX. RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents
of the same from all liability for negligence which may arise in the course of Contractor's
performance of its obligations pursuant to this Agreement.
SECTION X. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of its
rights or obligations hereunder without the prior written consent of the other party. It shall be
controlled by Indiana law and shall be binding upon the parties, their successors and assigns. It
constitutes the entire Agreement between the parties, although it may be altered or amended in whole
or in part at any time by filing with the Agreement a written instrument setting forth such changes
signed by both parties.
This Agreement may be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and suit arising
under this Contract, if any, must be filed in said courts. The parties specifically agree that no
arbitration or mediation shall be required prior to the commencement of legal proceedings in said
Courts.
Any person executing this Contract in a representative capacity hereby warrants that he has been duly
authorized by his or her principal to execute this Contract.
Page 4 of 5
In the event of any breach of this Agreement by Contractor, and in addition to any other damages or
remedies, Contractor shall be liable for all costs incurred by City due to the enforcement of this
Agreement, including but not limited to City's reasonable attorney's fees, whether or not suit is filed.
In the event that an ambiguity or question of intent or a need for interpretation of this Agreement
arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the
day and year first written above, although signatures may be affixed on different dates.
"CITY"
THE CITY OF RICHMOND, INDIANA by
and through its Board of Parks and Recreation
By:_S/S Mike Foley
Mike Foley, President
By:_S/S Avis Stewart
Avis Stewart, Vice President
By:_S/S Jennifer Eastman
Jennifer Eastman, Member
Karen Montgomery, Member
Date: April 1, 2010
APPROVED: S/S Sarah L. Hutton
Sarah L. Hutton, Mayor
Date: April 6, 2010
"CONTRACTOR"
SPEAR CORPORATION
By:_S/S Patricia Baldwin
Printed: (—Patricia Baldwin )
Title: CFO
Date: April 8, 2010
Page 5 of 5