Des Moines Public Schools Purchasing Department PROFESSIONAL SERVICES AGREEMENT

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1 THIS AGREEMENT is entered into the date listed below written between the Des Moines Public Schools (District) and Hawkeye Van Ginkel Lawn & Snow 5750 Metro East Drive POB Pleasant Hill. Iowa Mr. John Berg (Contractor) 1. SERVICES BY CONTRACTOR A. Performance of Services: The Contractor shall perform the services described in the scope of work as detailed in Section Thirteen (13). All services will be rendered to the best of the Contractor s ability and in a timely and professional manner in compliance with all the terms and conditions established by the District. B. Modification: The District may make changes to the services that were described in Section Thirteen (13). In the event of a modification to the original document, the District shall notify the Contractor by written notice. If any modification results in an increase or a reduction of the work described in this section, then the compensation hereunder shall be modified, if mutually accepted by both parties. 2. PAYMENT A. Payment Terms: The District shall pay the Contractor as detailed in the Scope of Work. The Contractor shall submit a request for payment (invoice) on a bimonthly basis for services performed for the previous period. The District will process the request for payment and request approval at the first regularly scheduled Board of Education meeting, the District intends to pay all invoices within days after receipt of the invoice by the District Administration Office. The District intends to use a procurement / virtual credit card, or may make payments by electronic funds transfer and recommends that Contractor accept one of these forms of payment. 3. DISCRIMINATION AND COMPLIANCE WITH LAWS A. Compliance: The Contractor shall be familiar and comply with all local, state, and federal directives, ordinances, rules, orders, and laws as applicable to, and affected by, this contract. It is the policy of the Des Moines Community School District not to illegally discriminate on the basis of race, color, national origin, sex, disability, religion, creed, age (for employment), marital status (for programs), sexual orientation, gender identity and socioeconomic status (for programs) in its educational programs and its employment practices. There is a grievance procedure for processing complaints of discrimination. If you believe you have been discriminated against or treated unjustly, please contact the Chief of Human Resources Dr. Anne Sullivan at 2323 Grand Avenue, Des Moines, IA 50312, anne.sullivan@dmschools.org Section CFR 104.8, Title IX 34 CFR 106.9, OCR Guidelines IV.O and V.C B. Violation: Violation of this Section 3 shall be a material breach of this Agreement and grounds for cancellation, termination or suspension of the Agreement by the District, completely or in part, and may result in ineligibility for further work for the District. 1

2 4. TERM AND TERMINATION OF AGREEMENT Des Moines Public Schools A. Term: The term of the contract will commence on the date in which the Professional Services Agreement is signed by the District s Controller. The Contractor shall not start the performance of any work prior to the Effective Date of the contract and District shall not be liable to pay the Contractor for any service or work performed or expenses incurred before the Effective Date of the contract. The District intends the contract will be with the Contractor for one valuation period, with the option for both parties to extend four additional valuation periods if mutually agreed by both parties. B. Termination: In order to protect the vested interests of the taxpayers of the Des Moines Public School District, and to ensure the efficient utilization of their tax dollars, Contractor shall comply with all contractual obligations contained herein, with respect to these obligations, the District will report any non-compliance issues in writing, to the Contractor for corrective action. Continued non-compliance by the Contractor shall be the District's justification for placing the Bidder's contract on probation status or termination. C. Debarment: The District is prohibited from entering into a contract where an organization or, its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal, State or Local department or agency. D. All other terms and conditions as Terms-n-Conditions-New.pdf 5. DISCLOSURE & OWNERSHIP OF WORK A. Non-Disclosure Agreement: The Contractor agrees to all terms and conditions as specified in their executed Non- Disclosure Agreement, and is subject to Iowa code chapter 22 regarding public open records. If necessary for the service provided. B. Information: All data, materials, reports, memoranda and other documents developed under this Agreement whether finished or not shall become the property of the District, shall be forwarded to the District at its request and may be used by the District as it sees fit. The District agrees that if it uses products prepared by the Contractor for purposes other than those intended in this Agreement, it does so at its sole risk and it aggress to hold the Contractor harmless. 6. ADMINISTRATION A. The Director of Facility Management or his designee shall be the District s representative, and shall oversee and approve all services to be performed, coordinate all communications, and review and approve all invoices under this agreement. 2

3 7. INDEMNIFICATION A. General: To the fullest extent permitted by law, the Contractor agrees to defend, pay on behalf of, indemnify, and hold harmless the District against any and all claims, demands, suits, damages or losses, together with any and all outlay and expense connected therewith, including but not limited to attorneys fees and court costs, that may be asserted or claimed against, recovered from or suffered by the District by reason of any unauthorized release of information, injury or loss, including, but not limited to, personal injury, including bodily injury or death, property damage, including loss of use thereof, and economic damages arising out of or in any way connected or associated with any work and/or activities performed by the Contractor pursuant to the provisions of this Agreement. The Contractor obligation to indemnify the District contained in this Agreement is not limited by the amount or type of damages, compensation or benefits payable under any workers' compensation acts, disability benefit acts, or other employee benefit acts. B. Limitations: The District shall not be liable or in any way responsible for any unauthorized release of information, injury, damage, liability, claim, loss or expense incurred by the Contractor, its officers, employees, subcontractors, and others affiliated with the Contractor, arising out of or in any way connected or associated with any work and/or activities performed by the Contractor pursuant to the provisions of this Agreement, except for and only to the extent caused by the negligence of the District. C. District Property: The Contractor expressly assumes full responsibility for any and all damages to the District Property arising out of or in any way connected or associated with any work and/or activities performed by the Contractor pursuant to the provisions of this proposal including, but not limited to, the activities of the Contractor, its officers, employees, subcontractors, and others affiliated with the Contractor. The Contractor shall ensure that its activities on the District premises will be performed and supervised by adequately trained and qualified personnel and the Contractor will observe, and cause its officers, employees, subcontractors and others affiliated with the Contractor to observe all applicable district and safety rules. 8. INSURANCE: RISK OF LOSS Contractor shall submit to the District certificates of insurance, prior to beginning work under this contract and no later than ten (10) days after award of the contract. All policies of insurance required herein shall be written by insurance companies licensed to conduct the business of insurance in Iowa, and acceptable to the District, with an A.M. Best rating of B+ or greater and shall carry the provision that the insurance will not be cancelled or materially modified without thirty days (30) prior written notice to the District. The District also requires the Additional Insured, Governmental Immunities and Cancellation and Material Change Endorsement. The Aggregate per Location Endorsement required on commercial general liability insurance may be a standard Insurance Service Office form acceptable to the District. The certificates of insurance shall list the Des Moines Public Schools as the additional insured for the specified project as outlined in this RFP. The coverage shall be written with a limit not less than $1 million for any one claim, with an aggregate not less than $3 million for all claims in a policy period. The Contractor must provide a statement saying that such coverage shall be written exclusively to cover the Des Moines contract or as an alternative guarantee that the aggregate has not already been impaired by other claims if this policy activities or work for other clients. Other forms of insurance, which must be maintained during the entire term of the contract and any extensions, shall be of the following forms and limits: 3

4 8. INSURANCE: RISK OF LOSS Forms Limits Workers' Compensation Statutory Automobile Liability $1,000,000 Combined Single Limit Commercial General Liability $1,000,000 Combined Single Limit (Including Contractual Liability & Products Completed Operations Coverage) Umbrella/Excess Liability $2,000,000 The establishment of minimum limits of insurance by the Des Moines Public Schools does not reduce or limit the liability or responsibilities of the Contractor. 9. INDEPENDENT CONTRACTOR A. Employees: All employees of the Contractor shall be considered to be, at all times, employees of the Contractor under its sole direction and not an employee or agent of the District. The Contractor shall supply competent and physically capable employees in a number that is consistent with the requirements detailed in the scope of work. Where required, employees shall be licensed and accredited. The Contractor shall certify that all employees employed in support of this contract who have direct contact with students, which is defined to mean being in the presence of students during regular school hours or during school-sponsored activities, have not been convicted of (i) a felony; (ii) any offense involving the sexual molestation, physical or sexual abuse or rape of a child; or (iii) a crime of moral turpitude. The Contractor will be responsible for the cost of all the equipment, accessories, labor, and materials in order to the work as detailed in the Scope of Services. B. Removal of Employees: The District may require the Contractor to remove an employee it deems careless, incompetent, insubordinate or otherwise objectionable and whose continued employment on District property is not in the best interest of the District. C. Controlled Substances: In accordance with the District's policy regarding the use of tobacco and alcohol products and/or illegal drugs, no employee of the Contractor shall be permitted to use these substances when performing work on District property. 10. CONTRACT ASSIGNMENT Neither the District nor the Contractor shall assign, transfer, or encumber any rights, duties or interests accruing from this Agreement without the express prior written consent of the other. 11. FUTURE SUPPORT The District makes no commitment and assumes no obligations for the support of the Contractors activities except as set forth in this Agreement. 4

5 12. GENERAL PROVISIONS A. Governing Laws: The terms and conditions of this Agreement shall be construed in accordance with the laws of Iowa. Wherever differences exist between Federal and State statutes or regulations affecting this Agreement, interpretation shall be in the direction of that which is most beneficial to the interests of the District. B. Severability: If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The District and the Contractor agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. C. Non-Waiver: Any failure by the District to enforce strict performance of any provision of the Agreement will not constitute a waiver of the District s right to subsequently enforce such provision or any other provision of the Agreement. D. District Marks: The Contractor will not use any trade name, trademark, service mark, or logo of the District in any advertising, promotions, or otherwise, without the Districts express prior written consent. E. No Assignments: Neither the Agreement nor any rights of obligations of the Contractor arising under the Agreement may be assigned without the Districts prior written consent. F. Notices: All notices and other communications under the Agreement must be in writing, and must be given by registered or certified mail, postage prepaid, or delivered by hand to the party to whom the communication is to be given, at its address set below. G. Legal Fees: In any lawsuit between the parties with respect to the matters covered by the Agreement, the prevailing party will be entitled to receive its reasonable attorney s fees and costs incurred in the lawsuit, in addition to any relief may be awarded. H. Conflict of Terms: The following will used to resolve conflicts of terms: Professional Service Agreement, Request for Proposal and District General Terms and Conditions. I. Counterparts: The Agreement may be signed in counterparts, each of which shall be deemed an original, and all of which, taken together shall be deemed to be the same document. 5

6 13. SCOPE OF WORK a. Required Conditions & Services: 1) The Contractor shall furnish all supervision, sufficient labor, fuel, materials, equipment, employee safety training, supplies, insurance and other resources to perform snow removal of all areas specified in this request for proposal (See Exhibits B, C &D). 2) Snow removal specifications and locations as outlined in Exhibit B Scope of Services section of this request for proposal. Generally: a) Remove all snow and apply ice melt product by 7:00 a.m. of the snow event, (Note sand is not permitted) b) Coordinate all snow removal with District personnel prior to snow events to determine if removal is required. (Note: A snow event is any snow shower that yields an accumulation of one (1) inch or more.) c) Coordinate post snow event clean up as wind and conditions require. d) If the Contractor is unable to perform the required services as scheduled and has not communicated their inability to do so, the District shall retain the right to have the services performed by internal staff or another Contractor, holding the Contractor responsible to pay the District for these costs. 3) Snow removal services are limited to the identified property listed in this contract document. 4) Snow removal is not to take place when students or staffs are in close proximity. 5) Contractor shall perform their duties as outlined with care and when possible shall remain at least twenty-five feet (25 ) away from any person. 6) All equipment safety devices, must be in place and used. 7) No abrupt actions of equipment are permitted which may result in damage to district property. Operation of equipment resulting in damage is not permitted. 8) The Contactor shall respond to calls from the District regarding missed or omitted areas and shall complete the requested work within 4 hours of notification. 9) Contractor personnel shall be courteous to the public, follow all industry accepted safety standards (OSHA). 10) Contractor s personnel must be U.S. citizens. 11) Contractor and their personnel must comply with all applicable City, State and Federal rules and regulations as set forth currently or in the future. 12) The Contractor shall certify that all employees employed in support of this contract, have not been convicted of (i) a felony; (ii) any offense involving the sexual molestation, physical or sexual abuse or rape of a child; or (iii) a crime of moral turpitude. (Exhibit A). 13) The Contractor maybe asked by the District to remove / replace an employee it deems careless, incompetent, insubordinate or otherwise objectionable and whose continued employment on District property is not in the best interest of the District. In accordance with the District's policy regarding the use of tobacco and alcohol products and/or illegal drugs, no employee of the Contractor shall be permitted to use these substances when performing work on District property. 14) Contractor shall be responsible for any damage to any District or private property / structures because of their operations, and shall report such damage within twenty-four hours of occurrence. The Contractor will be responsible for the reasonable cost of replacement. 6

7 A. Required Conditions & Services: 15) Damage to physical structures (buildings, signs, etc.) by the Contractor s personnel shall be immediately reported to the Director of Facility Management Services or his designee to determine the extent of the damage and replacement costs to the Contractor. 16) The Contractor shall not utilize subcontractors except in emergencies when preauthorized in writing by the Director of Facility Management Services or his designee. 17) Unauthorized use of subcontractors by the Contractor may be cause for termination of the contract. 18) Under no circumstances will District personnel supervise Contractor s personnel; failure of the Contractor to supervise its personnel may be cause for termination of the contract. B. Costs 1) Contractor agrees to the following snow removal costing structure: a) Cost to remove Hanawalt per event: 2- inches inches inches inches 10+ inches b) Cost to remove Merrill per event: inches inches inches inches 10+ inches c) Cost to remove Smouse per event: inches inches inches inches 10+ inches d) Cost to remove Ruby Van Meter per event: Included in Smouse pricing 2) Contract agree to the following accessory costing structure: b) Rock salt c) Sand d) Ice melt 3) Post City of DSM clean up/drifting Trip Charge + One hour min. equip. charge C. Duties & Responsibilities of the School District: 1) The District will provide point of contact information for each location to the Contractor 2) The District will provide site maps for each location to the Contractor. 3) The District will provide direction and feedback on the level of service performed by the Contractor. 7

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9 Exhibit A Offender Acknowledgement Contractor is providing services to the Des Moines Independent Community School District ( District ) as a contractor, vendor, supplier, Contractor or sub-contractor and/or is operating or managing the operations of a contractor, vendor, supplier or Contractor. The services provided by the Contractor may involve the presence of the Contractor s employees upon the real property of the District. The Contractor acknowledges that Iowa law prohibits a sex offender who has been convicted of a sex offense against a minor from being present upon the real property of the District. The Contractor further acknowledges that, pursuant to Iowa law, a sex offender who has been convicted of a sex offense against a minor shall not operate, manage, be employed by, or act as a contractor or volunteer at the District. The Contractor hereby certifies that no one who is an owner, operator or manager of the Contractor has been convicted of a sex offense against a minor. The Contractor further certifies and agrees that it shall not permit any person who is a sex offender convicted of a sex offense against a minor to provide any services to the District in accordance with the prohibitions set forth above. The Contractor further certifies that the Contractor has completed a satisfactory background check on the Contractor s employees. The Contractor hereby agrees to provide the District with the Contractor s background screening procedures including specific context and infractions that are reviewed by the Contractor. The District reserves the right to, but does not have the obligation to, conduct a District background check on Contractor employees as determined by the District in its sole discretion. The District reserves the right to restrict access of any Contractor employee upon the real property of the District if such employee does not clear the District s background check. The District reserves the right, but does not have the obligation to, to audit the Contractor s background screening program at any time, whether announced or unannounced. The Contractor hereby agrees that the Contractor shall, upon request, permit an authorized District representative to review background screening records, including those of individual Contractor employees, in order to conduct a compliance review, audit or investigation, to the fullest extent permitted by law. The Contractor shall ensure that the provisions of this Acknowledgement and Certification are extended to any and all subcontractors, consultants, or others the Contractor may engage if such engagement involves their presence upon the real property of the District. The Contractor understands and agrees that violation of any of the provisions of this Acknowledgement and Certification shall constitute sufficient grounds for termination of any contract or subcontract without damages or penalty to the District. This Acknowledgment and Certification is to be construed under the laws of the State of Iowa. If any portion hereof is held invalid, the balance of the document shall, notwithstanding, continue in full legal force and effect. In signing this Acknowledgment and Certification, the person signing on behalf of the Contractor hereby acknowledges that he/she has read this entire document that he/she understands its terms, and that he/she not only has the authority to sign the document on behalf of the Contractor, but has signed it knowingly and voluntarily. 9

10 Exhibit B Scope of Services Duties Work Required Frequency Snow Removal Remove all snow and apply ice melt product by 7:00 a.m. of the snow event, Note: Sand is not permitted. As needed Snow Removal Snow Removal Coordinate all snow removal with District personnel prior to snow events to determine if removal is required. (Note: A snow event is any snow shower that yields an accumulation of one (1) inch or more.) Coordinate post snow event clean up as wind and conditions require. As needed As needed The District makes no guarantees as to the level of work or amount to be expended during the season. 10

11 Exhibit C Site Locations Zone: School Name Level Address Zip Code Hanawalt Elementary th Street Merrill Middle 5301 Grand Ave Smouse Elementary 2820 Center Street Ruby Van Meter High th Street 11

12 Exhibit D Site Maps Red outline indicates the area designated for snow removal. Proposers are encouraged to visit each site in order to prepare and submit an accurate proposal MERRILL 12

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14 SMOUSE & VAN METER HANAWALT 14

15 Exhibit E Endorsements ADDITIONAL INSURED ENDORSEMENT Des Moines Public Schools, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees, and volunteers, are included as Additional Insureds. This coverage shall be primary to the Additional Insureds, and not contributing with any other insurance similar protection available to the Additional Insureds, whether other available coverage is primary, contributing or excess. GOVERNMENTAL IMMUNITIES ENDORSEMENT Non-waiver of Governmental Immunity: The insurance carrier expressly agrees and states that the purchase of this policy and the including of the District as an Additional Insured does not waive any of the defenses of governmental immunity available to the District under Code of Iowa Section as it now exists and as it may be amended from time to time. Claims Coverage: The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section as it now exists and as it may be amended from time to time. Assertion of Government Immunity: The District shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. Non-Denial of Coverage: The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the District under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the District. No Other Change in Policy: The insurance carrier and the District agree that the above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. CANCELLATION AND NONRENEWAL ENDORSEMENT Thirty (30) days Advance Written Notice of Cancellation, ten (10) days Written Notification of Cancellation due to non-payment of premium and forty-five (45) days Advance Written Notification of Non-Renewal shall be sent to: Des Moines Public Schools, Human Resources c/o Cathy McKay, Risk Manager, 901 Walnut Street, Des Moines, Iowa This endorsement supersedes the standard cancellation statement on the Certificate of Insurance to which this endorsement is attached. WAIVER OF SUBROGATION To the fullest extent permitted by law, the Contractor hereby releases the District, its elected and appointed officials, its agents, employees and volunteers and others working on its behalf from and against any and all liability or responsibility to the Contractor or anyone claiming through or under the Contractor by way of subrogation or otherwise, for any loss without regard to the fault of the District or the type of loss involved, including loss due to occupational injury. This provision shall be applicable and in full for and effect only with respect to loss or damage occurring during the time of the contract. The Contractor s policies of insurance shall contain a clause or endorsement to the effect that such releases shall not adversely affect or impair such policies or prejudice the right of the Contractor to recover there under. 15