Lewiston HVAC and Refrigeration Public Works Contract.docx

PUBLIC WORKS CONTRACT

(On-Call HVAC and Refrigeration Services ISVH -L)

This Public Works Contract (“Contract”) is entered into as of the effective date set forth below by and between the State of Idaho, Division of Veterans Services (the “Division”) and the individual, partnership, corporation or other entity executing this Contract (the “Contractor”). For and in consideration of the covenants contained in this Contract, the parties agree as set forth herein.

Section I – Contract Documents

Section II – On-Call Services The Contractor shall be available to perform the services, including supplying and installing materials, set forth in the Request for Bids and the Bid (collectively, these services are the “Project”) for the Division. The Contractor shall perform the Project at the Division location set forth in the Request for Bids (the “Worksite”). The Contractor shall not substitute or vary the materials or subcontractors specified in the Request for Bids or the Bid without the prior written permission of the Division.

The Division may contact Contractor to perform the Project on an as-needed basis. Contractor shall coordinate Contractor’s performance of the Project with Marvin Delp, the project coordinator or the project coordinator’s designee (the “Project Coordinator”). All services shall be documented on a work-order signed by the Project Coordinator. The Project Coordinator will identify whether the requested services under the Project are an emergency or routine. In the event of an emergency, Contractor shall respond to the Worksite and implement temporary or permanent repairs within three (3) hours of the contact by the Project Coordinator. If the Project Coordinator identifies requested services as routine, Contractor will respond to and implement temporary or permanent repairs between the hours of 7:00 a.m. and 6:00 p.m. on the next occurring weekday (Monday to Friday), excluding State of Idaho holidays. Contractor shall maintain the Worksite in a neat and orderly condition as reasonably directed by the Project Coordinator and shall comply with all reasonable procedures established by the Project Coordinator.

Section III – Term This Contract is effective on XXXX shall expire one year following the effective date, provided, however that upon written notice by the Division to the Contractor the Division may extend the term of the Contract for two (2) additional one (1) year renewal periods. This Contract may be modified, including extensions, only as provided in section 8.11 and as allowed by law.

Section IV – Compliance with Law Contractor shall comply with all requirements of federal and state statutes, rules, and regulations applicable to Contractor and to the Project. Applicable laws include, but are not limited to: Public Works Contractors licensing pursuant to Idaho Code title 54 chapter 19; state and federal occupational health and safety laws; trade and professional licensing and certification laws; building codes; the provisions of Idaho Code title 44 chapter 10 concerning employment under public works contracts; Idaho Code title 63 chapter 15 concerning authorization to do business and payment of taxes; and, the provisions of Idaho Code section 72-1717 concerning drug-fee workplaces.

Section V – Performance and Warranty

Section VI – Costs and Billing The Division shall not be liable to the Contractor for any expenses Contractor pays or incurs unless otherwise agreed to in writing by the Division or for services performed prior to the Commencement Date. Except as set forth in the Contract, the Contractor shall supply, at its sole expense, all equipment, tools, materials or supplies to perform the Project.

Costs for the Project shall not exceed ten thousand dollars ($10,000), including labor and materials or parts, during the term of the Contract without the prior written approval of the Division and the submission by the Contractor of proof of compliance with the licensure and bonding requirements of Idaho Code title 54 chapter 19. If a federal or state audit indicates that payments to the Contractor fail to comply with applicable federal or state laws, rules or regulations, the Contractor shall refund and pay to the Division any compensation paid to Contractor arising from such noncompliance, plus costs, including audit costs.

Contractor shall bill the Division for the actual labor performed for the Project, subject to the not to exceed costs set forth above, at the labor rates specified in the Bid (the “Labor Rates”). Travel and other business expenses shall not be a cost billed to the Division except to the extent that they are overhead costs reflected in the Labor Rates. The Contractor shall bill using the regular rate for all work performed between the hours of hours of 7:00 a.m. and 6:00 p.m. on weekdays (Monday to Friday), excluding State of Idaho holidays as defined in Idaho Code section 73-108. Contractor may bill using the overtime rate for all work performed outside the hours of 7:00 a.m. and 6:00 p.m. and on Saturdays, Sundays and State of Idaho holidays as defined in Idaho Code section 73-108.

Contractor shall bill the Division for materials and parts at the cost to the Contractor plus the following percentage markup: 10%. Permit fees, shipping charges, packing charges, handling or delivery charges, and sales and use taxes shall be considered reimbursable expenses and shall not be subject to the materials markup set forth above.

The Contractor shall submit invoices no more than once per month to the Division. Invoice shall contain the following:

The name and address of the Contractor The date(s) the Contractor performed each service A description of the service The labor rate applicable to the service The number of hours billed for the service The part or material supplied The cost to the Contractor for the part or material and the applicable markup .

The Division, in its discretion, may require written documentation of invoice items as a condition of payment. If the Division requests written documentation substantiating an invoice item, the item shall be severed from the invoice until the Division approves the item and the Division shall not be liable for payment prior to approval. Upon approval of an invoice, the Division shall make payment in accordance with Idaho Code section 67-2302. The Division may withhold payment in the amount of costs or losses to the Division from performance by the Contractor failing to meet the requirements of this Contract and from the Contractor’s failure to complete the Project by the Completion Date.

Section VII –Bonding and Insurance

All insurance, except for Workers Compensation, and Professional Liability/Errors and Omissions shall name the State of Idaho and (agency) as Additional Insured. All insurance shall be with insurers rated A-, VII, or better in the latest Bests Rating Guide, and be in good standing and authorized to transact business in Idaho. The coverage provided by such policies shall be primary. Policies may contain deductibles, but such deductibles shall not be deducted from any damages due the Division or the state of Idaho.

If any of the liability insurance required for this Contract is arranged on a “claims-made” basis, “tail coverage” will be required at the completion or termination of this Contract for a duration of twenty-four (24) months thereafter. Continuous “claims-made” coverage will be acceptable in lieu of “tail-coverage” provided the retroactive date is on or before the effective date of this Contract, or twenty-four-months “prior acts” coverage is provided. Contractor will be responsible for furnishing certification of “tail coverage” or continuous “claims-made” coverage.

By requiring insurance herein, the Division does not represent that coverage and limits will necessarily be adequate to protect the Contractor, and such coverage and limits shall not be deemed as a limitation on the Contractor’s liability under the indemnities granted to the Division.

Contractor shall maintain insurance in amounts not less than the following:

Commercial General Liability (CGL) with a limit of not less than $1,000,000 each occurrence, and $1,000,000 annual aggregate, if defense is outside the limits. If defense is inside the limits, the limit must be $2,000,000 each occurrence, and $2,000,000 aggregate. If necessary, a commercial umbrella or excess policy may be used to meet the limits required, providing the CGL is listed on the underlying insurance in the umbrella or excess policy, and the umbrella/excess policy meets the requirements above for acceptable carriers.

If specified in an attachment to this Contract, Automobile Liability including owned, non-owned, and hired liability with a limit of not less than $1,000,000 each occurrence, and $1,000,000 aggregate. If necessary, a commercial umbrella or excess policy may be used to meet the limits required, providing the Auto is listed on the underlying insurance in the umbrella or excess policy, and the umbrella/excess policy meets the requirements above for acceptable carriers.

Workers Compensation Insurance in amounts as required by statute in all states in which the contractor performs work, and Employers’ Liability with a limit of $100,000 Bodily Injury by Accident-each Accident, $100,000 Bodily Injury by disease-each employee, $500,000 Bodily Injury by Disease-policy limit.

If specified in an attachment to this Contract, Professional Liability insurance covering any damages caused by an error, omission or any negligent acts. Combined single limit per occurrence and annual aggregate limit shall not be less than the amounts specified in such attachment or the equivalent.

Section VII – Miscellaneous Provisions

8.1. Assignment and Subcontracting. Unless otherwise allowed by the Division in this Contract, Contractor shall not subcontract all of any portion of the Contract without the prior written approval of the Division. The Division will approve subcontracts in the Division’s sole judgment and under such terms and conditions as the Division shall deem necessary, including but not limited to licenses and insurance coverage. Notwithstanding the Division's approval of any subcontract, the Contractor shall be solely responsible for the satisfactory performance of all subcontractors and subcontracted services and for the compensation of all subcontractors. Contractor shall be and shall remain liable for all damages to the Division caused by negligent performance or non-performance of the subcontracted services.

Neither party may assign its rights or delegate its duties, in whole or in part, without the prior written consent of the other except that Contractor may assign as collateral its right to payment under the Contract with prior written notice to the State.

The Division reserves the right to terminate this Contract in whole or in part (or any order placed under it) if, in its sole judgment, the Legislature of the State of Idaho fails, neglects, or refuses to appropriate sufficient funds as may be required for the Division to continue such payments, or requires any return or "give-back" of funds required for the Division to continue payments, or if the Executive Branch mandates any cuts or holdbacks in spending, or if funds are not budgeted or otherwise available, or if the Division discontinues or makes a material alteration of the program under which funds were provided. The Division shall not be required to transfer funds between accounts in the event that funds are reduced or unavailable.

All affected future rights and liabilities of the parties shall thereupon cease within ten (10) calendar days after notice to the Contractor. Further, in the event of non-appropriation, the Division shall not be liable for any penalty, expense, or liability, or for general, special, incidental, consequential or other damages resulting therefrom.

8.15 Sovereign Immunity. Nothing contained herein shall be deemed to constitute a waiver of the State of Idaho’s sovereign immunity, which immunity is hereby expressly reserved.

[Signature Page Follows] IN WITNESS WHEREOF, the parties have executed this agreement.

Division of Veterans Services

PUBLIC WORKS CONTRACT

Page 8 of 8 Rev. 02-14-11