1. CONTRACTOR PERFORMANCE AND TRIBAL INFORMATION
a. Contractor shall be solely responsible for completing the Scope of Work in accordance with the terms of this Contract; provided, however, the Tribe’s designated representative may be present at the site of the work to observe Contractor’s performance and address any issues that may arise during the course of performance. Contractor is solely responsible for (i) the costs related to any subcontractor engaged by Contractor for any portion of the obligations under this Contract, and (ii) insuring that any work performed by any subcontractor engaged by Contractor fully complies with this Contract.
b. Contractor will use its best efforts to accomplish the services in accordance with the terms of this Contract. Contractor will provide services hereunder in accordance with the conditions and requirements of this Contract, and reflect the skill, knowledge, and judgment required or reasonably expected of firms and/or persons performing comparable services. Contractor shall be responsible for the professional quality, technical accuracy, completeness, and coordination of all services, it being understood that the Tribe will be relying upon such professional quality, accuracy, completeness, and coordination in utilizing such services.
c. Contractor shall be responsible for the completeness and accuracy of Contractor’s work, plans, supporting data, and special provisions prepared or compiled under Contractor’s obligation for this project and shall correct, at Contractor’s expense, all errors or omissions therein which may be disclosed. The cost to correct those negligent errors attributable to Contractor and any damage incurred by Contractor’s errors shall be chargeable to Contractor. The fact that the Tribe accepted or approved Contractor’s work shall in no way relieve Contractor of any of Contractor’s responsibilities.
d. Contractor represents and warrants that Contractor has the right to perform the services required under and pursuant to this Contract without violation of obligations to others, and that Contractor has the right to disclose to the Tribe all information transmitted to the Tribe in the performance of services under and pursuant to this Contract, and Contractor agrees that any information submitted to the Tribe, whether patentable or not, may be used fully and freely by the Tribe.
2. INDEPENDENT CONTRACTOR
a. Both the Tribe and the Contractor agree that the Contractor is an independent contractor when performing its obligations under the Contract. Accordingly, the Contractor shall be responsible for payment of all taxes arising out of the Contractor’s activities in accordance with this Contract, including by way of illustration but not limitation, Federal and state income tax, social security tax, unemployment insurance taxes, tribal taxes and any other taxes or business license fees as required. The Contractor agrees to indemnify, save, and hold harmless the Tribe for any taxes, costs, claims, judgments, attorney’s fees, attachments or other liabilities arising out of the Contractor’s failure to report or make payments as required by Federal, state, or local law. Promptly following the Effective Date, Contractor shall provide the Tribe’s Fiscal Department with a completed IRS Form W-9. The Tribe agrees to provide Contractor with a completed IRS Form 1099 at the end of the year.
b. The Contractor understands and agrees that it is an independent contractor and not an employee of the Tribe and, as such, it is not entitled to any of the protections, rights or benefits provided to an employee of the Tribe. Contractor hereby waives any right or claim to unemployment benefits, group insurance benefits, vacation and holiday benefits, or other benefits or contributions to such benefits which an employee of the Tribe may be entitled to receive. Further, the Tribe shall not provide workman’s compensation coverage to Contractor.
3. COMPLIANCE WITH LAWS
Contractor shall comply with all laws of the Tribe, including all laws enacted during the term of this Contract. Furthermore, the Contractor shall comply with all applicable federal, State of Iowa and local laws applicable to the obligations of the Contractor under this Contract.
Contractor shall assume absolute liability for, and shall indemnify and hold harmless the Tribe and its departments, agencies, officers, agents, and/or employees (collectively, the “Tribal Parties”), and will defend (with legal counsel acceptable to the Tribe), the Tribal Parties from and against any and all demands, claims, lawsuits, losses, damages, judgments, awards, assessments, liabilities, costs, fees or expenses of whatever kind or nature (including attorney’s fees), arising out of, resulting in any way from, or in any way related to, violation of applicable law, any negligent, or reckless, or intentional, or fraudulent, or criminal, or illegal, act, failure to act, error, or mistake of the Contractor or any person employed by Contractor, or anyone for whose acts the Contractor is legally liable.
5. TRIBAL PROPERTY
a. Contractor shall exercise due care and diligence in the performance of its work to preserve and protect all real and personal property of the Tribe.
b. Contractor agrees that Contractor shall be liable to the Tribe for damage, loss and the like caused by the negligence, gross negligence or intentional acts or omissions of Contractor, or any person employed by Contractor, or anyone for whose acts the Contractor is legally liable, including harm or injury to persons or damage to any property of the Tribe.
c. On termination of this Contract, regardless of how termination is effected, or whenever requested by the Tribe, Contractor shall immediately return to the Tribe all of the Tribe’s property, if any, used by Contractor in rendering services under and pursuant to this Contract, or that is otherwise in Contractor’s possession or under Contractor’s control.
d. All documents which are prepared in performance of this Contract are to be and remain the property of the Tribe and are protected by applicable Tribal laws. Furthermore, all documents and rights thereto (if required) are to be delivered to the Tribe before the final payment is made to Contractor.
e. Nothing in this Paragraph shall be construed as granting Contractor any right, title, or interest to any property, real or personal , of the Tribe or as granting Contractor any right or privilege to the use, possession, control, or occupancy of property of the Tribe, real or personal or otherwise, except under the express terms of this Contract.
6. DUTIES UPON TERMINATION OF CONTRACT
a. This Contract may be terminated in whole by either party in the event of substantial failure by the other party to fulfill its obligations under the Contract through no fault of the terminating party. Such termination may be effected only when the other party is given: (1) not less than three (3) calendar days written notice (delivered by personal delivery or by certified mail, return receipt requested) of the party’s intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination.
b. Upon termination of this Contract by the Tribe for reasons of default by the Contractor, an adjustment in the compensation provided for in the Contract shall be made, however, no amount shall be allowed for anticipated profit or unperformed services. If termination for default is effected by Contractor for reasons of default by the Tribe, the adjustment shall include a reasonable profit.
c. The Tribe and Contractor hereby agree to full performance of the covenants contained herein, except that the Tribe reserves the right, at its discretion, to terminate or abandon the services provided for or which have been performed under this Contract.
i. In the event that the Tribe shall abandon the services or any part of the services as herein provided, the Tribe shall notify the Contractor in writing, and immediately after receiving such notice, the Contractor shall discontinue advancing the work under this Contract and proceed to close said operations under the Contract.
ii. Upon such termination or abandonment, the Contractor shall deliver to the Tribe all materials supplied by the Tribe.
iii. Contractor shall appraise the work completed and submit its appraisal to the Tribe for evaluation and such reasonable extra costs shall be reimbursed to Contractor at the customary compensation for such services.
iv. Contractor shall receive as compensation in full, a fee for the percentage of work actually completed for its services performed to the date of such termination. This fee shall be a percentage of the Contractor’s compensation described in this Contract, and shall be an amount to be agreed upon mutually by Contractor and the Tribe. The Tribe shall make this final payment within sixty (60) days after Contractor has delivered the last of the partially completed items.
d. Following any termination of this Contract by Contractor or the Tribe, Contractor shall fully cooperate with the Tribe in all matters relating to the winding up of Contractor’s pending work on behalf of the Tribe and the orderly transfer of any such pending work to other contractors or to employees of the Tribe as may be designated by the Tribe.
7. THIRD PARTY BENEFICIARIES
There shall be no third-party beneficiaries of this Contract and this Contract is not intended to create any third-party beneficiaries. This Contract is entered into solely for the benefit of the Tribe and Contractor and shall not be deemed to create or evidence any right or remedy of any third party, whether or not designated in this Contract.
8. CHOICE OF LAW AND FORUM
The situs of this transaction is on lands within the jurisdiction of the Meskwaki Nation and the execution and delivery of this Contract has occurred on Indian lands. This Contract shall be governed by the laws of the Tribe. The Judicial Court of the Sac and Fox Tribe of the Mississippi in Iowa shall have original and exclusive jurisdiction over any controversies that may arise under this Contract.
Nothing in this Contract shall be read or construed to effect, modify, limit, or waive the sovereign immunity of the Tribe, its departments, enterprises, agencies, organizations, officers, agents, and/or employees.
10. SELF-DEALING AND KICKBACKS
Contractor warrants that no money, fee, commission, credit, gift, gratuity, benefit, thing of value, or compensation of any kind has been provided, directly or indirectly, to any person for the purpose of obtaining this Contract or other favorable treatment in connection with this Contract and that no such money, fee, commission, credit, gift, gratuity, benefit, thing of value, or compensation of any kind has been included in the contract price or other consideration provided for in this Contract.
a. Contractor shall be responsible for the completeness and accuracy of Contractor’s work, plans, supporting data, and special provisions prepared or compiled under Contractor’s obligation for this project and shall correct, at Contractor’s expense, all errors or omissions therein which may be disclosed.
b. The cost to correct those negligent errors attributable to the Contractor and any damage incurred by the Contractor’s errors shall be chargeable to the Contractor. The fact that the Tribe accepted or approved the Contractor’s work shall in no way relieve Contractor of any of Contractor’s responsibilities.
c. Contractor represents and warrants that Contractor has the right to perform the services required under and pursuant to this Contract without violation of obligations to others, and that Contractor has the right to disclose to the Tribe all information transmitted to the Tribe in the performance of services under and pursuant to this Contract, and Contractor agrees that any information submitted to the Tribe may be used fully and freely by the Tribe.
d. Contractor warrants that it currently possesses all necessary licenses, permits and approvals, required in the applicable jurisdictions to perform the Contract and has the authority to enter into this Contract.
a. Contractor represents and warrants that it has and will maintain insurance in the types and amounts that are standard for the profession in which Contractor is engaged and the type of work to be performed under this Contract including, without limitation, professional liability, commercial general liability, and commercial automobile liability insurance in amounts sufficient to cover Contractor’s potential liabilities and obligations under this Contract. A copy of the Contractor’s license and a copy of the Contractor’s insurance coverage are attached hereto as Exhibit B and fully incorporated herein by reference and Contractor shall maintain such license and insurance in full force and effect during the term of this Contract.
b. Each policy required herein shall contain a thirty (30) day notice of cancellation. Contractor shall also carry workman’s compensation insurance for its own employees, if any. The Contractor shall submit certificates of the aforementioned insurance policies to the Tribe prior to commencement of Services.
13. COSTS AND ATTORNEY’S FEES
The Parties agree in the event of breach of this Contract, the breaching party will pay the other party’s costs and reasonable attorney’s fees incurred because of the breach whether a lawsuit is instituted or not.
14. NO WAIVER
Any failure by the Tribe to exercise any rights or privileges granted to it or to insist upon full performance of all obligations assumed by the Contractor or to insist upon strict adherence to any term(s) of this Contract on any occasion shall not be considered or construed as waiving any such rights, privileges, obligations or duties, or to deprive the Tribe of the right thereafter to insist upon strict adherence to any term of this Contract, or as creating any custom contrary thereto.
Captions and paragraph headings used in this Contract are for convenience only and shall not be deemed to limit or alter any provisions of the Contract, and shall not be deemed relevant in construing the Contract.
Contractor acknowledges this Contract has resulted from negotiations between, and is fair to, each party, and therefore any rule of construction requiring ambiguities to be construed against the drafter of an agreement shall not apply to any term or provision of this Contract.
17. EMPLOYMENT PREFERENCE
a. If employees are hired by Contractor in the performance of Services under the Contract, Contractor agrees to give preference to Indians as required by the Tribe’s Employment Rights Ordinance.
b. Contractor agrees to include the above stated provision in each subcontract awarded under this Contract.
If any provision or portion of this Contract is declared void and unenforceable, such provision or portion of such provision shall be deemed severed from this Contract which shall otherwise remain in full force and effect. Further, if any such provision or portion of such provision may be reduced and/or narrowed in scope, such provision or portion of such provision shall be reduced, narrowed and so enforced. The same shall apply to any portion of any provision.
19. FACSIMILE AS GOOD AS ORIGINAL
The Tribe and Contractor agree that a facsimile/fax or other reproduction type copy of this Contract, so long as signed by the Parties, shall be considered an original and shall be fully enforceable against each party, notwithstanding anything to the contrary in applicable law, and the Parties voluntarily waive such requirements.
The Parties agree this Contract may be executed by the separate parties as separate counterparts; each of which when so executed and delivered shall be an original, but all such counterparts shall constitute one and the same agreement/instrument. The Parties agree such counterparts shall be effective immediately and in the future, notwithstanding anything to the contrary in applicable law, and the Parties voluntarily waive any such requirements.
This Contract may not be assigned or transferred, in whole or in part, expressly or by operation of law, by either party without the express written approval of the other party.
22. MERGER, NOTICES, AND MODIFICATIONS OF CONTRACT
a. This Contract contains the complete agreement and understanding between the Tribe and Contractor, and no statements, promises or inducements made by either party or agent of either party that are not contained in the documents comprising the written Contract shall be valid or binding.
b. No waiver, modification, or amendment of this Contract or of any covenant, condition or limitation contained in this Contract shall be valid unless in writing and duly executed by the Parties. The Parties further agree that the provisions of this Paragraph may not be waived, except as set forth in this Paragraph.
c. Any notices required to be made in connection with this Contract shall be in writing and delivered personally or by certified mail to the Parties at the below addresses, or to such other address(es) as the party to receive such notice shall designate in writing:
If to the Tribe:
Sac & Fox Tribe of the Mississippi in Iowa
349 Meskwaki Road
Tama, IA 52339
With a copy to:
Sac & Fox Tribe of the Mississippi in Iowa
349 Meskwaki Road
Tama, IA 52339
If to the Contractor:
The address provided in this Contract.
23. SUCCESSORS AND ASSIGNS
All rights, obligations and liabilities herein, given to, or imposed upon, the respective Parties hereto shall extend to and bind the several and respective heirs, executors, administrators, successors, and assigns of said parties, subject to the provisions of Section 23 provided, however, that no assets of the Tribe shall be affected by reason of any liability which the Tribe or any successor in interest may have under this Contract.
24. GENDER AND INTERPRETATION OF TERMS AND PROVISIONS.
As used in this Contract and whenever required by the context thereof, each number, both singular and plural, shall include all numbers, and each gender shall include all genders. The Tribe and Contractor as used in this Contract or in any other instrument referred to in or made a part of this Contract shall likewise include both the singular and the plural, a corporation, co-partnership, individual or person acting in any fiduciary capacity as executor, administrator, trustee, or in any other representative capacity. All covenants herein contained on the part of Contractor shall be joint and several.