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HomeMy WebLinkAboutC04-180 B.P. Reclamation AGREEMENT REGARDING PROVISION OF HYDROSEEDING SERVICES FOR AVON TO DOWD JUNCTION PHASE I TRAIL PROJECT This reement Regarding Provision of Professional Services For Hydroseeding Services dated as of , 2004, is between the County of Eagle, State of Colorado, a body corporate an politic, by and through its Board of County Commissioners ("County" or "Owner"), and B.P. Reclamation ("Contractor"). A. Contractor has represented that it has the expertise and personnel necessary to properly and timely perform the Services. B. Contractor and County intend by this Agreement to set forth the Scope of the responsibilities of the Contractor in connection with the Services and related terms and conditions to govern the relationship between the Contractor and County in connection with the Services. AGREEMENT Therefore, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: 1. Scope of the Services: Contractor's Services consists of those services performed by the Contractor, Contractor's Employees and Contractor's subcontractors. The Contractor shall provide all labor, materials and equipment necessary to perform and complete the Services described herein ("Services" or "Work"): a) B.P. Reclamation shall hydroseed the disturbed areas of the Avon to Dowd Junction trail as specified in the specifications attached as Exhibit A. The area to be seeded is estimated at approximately 2.5 acres. b) Potential but related extra work beyond the scope described in item a) above may requested from the Contractor. The scope and cost of extra work would agreed upon in advance and called out at as a separate item on the final invoice. c) The Contractor hereby acknowledges that he/she is able to provide the hydroseeding services for the East Edwards trail. d) Contractor shall submit the names and qualifications of all maintenance personnel and any subcontractors proposed to do the work. The County shall have the right to approve of all proposed personnel and subcontractors prior to commence of any work. e) The Parties hereto recognize that the scope of the Services may change. When the Contractor believes that the scope of the Services has been changed or that by reason of a decision of County it will be required to redo properly completed Services, the Contractor shall immediately advise County of such belief and shall also provide a statement of the maximum additional charges for such Services. The Contractor shall not be entitled to be paid for any such additional Services unless and until County agrees in writing that the scope of the Services has changed and accepts the statement of the maximum additional charges. 2. Contractor's Professional Level of Care: The Contractor shall be responsible for the quality and completeness of the Services. The fact that the County has accepted or approved the Contractor's Services shall not relieve the Contractor of any of its responsibilities. The Contractor and its subconsultants shall perform the Services in a skillful, professional and competent manner and in accordance with the standards of care, skill and diligence applicable to hydroseeding services providers with respect to similar Services. Time of Performance and Termination: a) The initial term of this Agreement is from the date the contract is executed by County to July 31, 2004. Servicing shall commence upon the date of execution of this contract. b) Notwithstanding the termination for cause provisions hereunder and pursuant to Paragraph 12 of the General Conditions, County may terminate this Agreement immediately, in whole or in part, for its convenience upon providing notice to the Contractor. Such termination shall be effective upon receipt of the notice by Contractor or upon such other date as specified by County. If either party defaults or neglects to carry out their obligations hereunder in accordance with this Agreement and fails within a five (5) day period after receipt of written notice from the other party to correct such default or neglect with diligence and promptness, the other party may, without prejudice to other remedies, terminate this agreement. If Contractor fails to correct such deficiencies after timely notification by County, County may in addition to or as an alternative to termination correct such deficiencies and deduct the cost of correction from payments due Contractor. c) Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to County nor shall any payment be made to Contractor for any Services done after January 31, of each year, without the written approval of the County in accordance with a budget adopted by the Board of County Commissioners in accordance with the provisions of Article 25 of Title 30 of the Colorado Revised Statues and the Local Government Budget Law (C.R.S 29-1-101 et seq.). 4. Compensation and Payment: In consideration of its performance of the Services, the Contractor shall be paid as follows: a) County shall pay $8,250.00 (Eight thousand two hundred fifty dollars) for services as defined in Exhibit A attached. b) Not more often than once a month, Contractor shall submit to County an invoice for payment signed by Contractor identifying the Services completed as of the date of the invoice, and accompanied by such supporting documentation as County may reasonably require. County agrees to pay Contractor within thirty (30) days of receipt of a properly documented invoice. c) Invoices shall describe the Services performed. Upon request, Contractor shall provide County with such other supporting information as County may request. d) All invoices will be sales tax free because County is a government exempt from such taxes. e) The Contractor shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following final payment hereunder, which period shall be extended at County's reasonable request. County shall have the right within such period to inspect such books, records and documents upon demand, with reasonable notice and at a reasonable time, for the purpose of determining, in accordance with acceptable accounting and auditing standards, compliance with the requirements of this Agreement and the law. 5. Project Mana eg ment: Bonnie Paffenroth, President of B.P. Reclamation shall be designated as Contractor's Project Manager for the Services. Ellie Caryl of Eagle County/ECO Trails shall be responsible for this Agreement. All correspondence between the parties hereto regarding this project shall be between and among the project managers. Either party may designate a different project manager by notice in writing. 6. Independent Contractor: It is expressly acknowledged and understood by the parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship. Contractor shall be, and shall perform as, an independent contractor. No agent, subcontractor, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of County. The Contractor shall be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, servants and subcontractors during the performance of this Agreement. 7. No Subcontracting; No Assi ui~ Went: The Contractor understands and hereby acknowledges that County is relying primarily upon the expertise and personal abilities of Contractor. Contractor may not subcontract or delegate any part of the Services or substitute subcontractors without County's written consent, which consent County may exercise in its sole discretion. Neither Contractor nor its subcontractors may assign its interest in the Agreement or in its subcontract, including the assignment of any rights or delegation of any obligations provided therein, without the prior written consent of County, which consent County may withhold in its sole discretion; provided that County hereby consents to any assignment to a successor entity to Contractor and to an assignment to an entity affiliated (by ownership) with Contractor. Except as so provided, this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective successors and assigns, and shall not be deemed to be for the benefit of or enforceable by any third party. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 8. Ownership of Documents: Records of Service provided under this Agreement shall be given to County at its request. 9. Insurance: At all times during the term of this Agreement, Contractor shall maintain the following insurance: a) Type of Insurance b) Comprehensive Liability c) Workers' Compensation Coverage Limits $1,000,000 minimum As required by Colorado law d) All insurance required hereby shall be issued by an insurance company or companies authorized to do business in the State of Colorado. The Contractor shall deliver certificates of required insurance to the County within fifteen (15) calendar days of execution of this Agreement by the Board. e) Before permitting any subcontractor to perform any Services under this Agreement, Contractor shall either (1) require each of his subcontractor to procure and maintain, during the life of his subcontracts, insurance which meets the requirements for the Contractor herein, or (2) provide for insurance of the subcontractor in Contractor's own policies in the amounts required herein above. 10. Indemnification: Within the limits allowed by law, Contractor shall indemnify the County for, and hold and defend the County and its officials, boards, officers, principals and employees, harmless from all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the acts or omissions, or representations by, the Contractor. This indemnification shall not apply to claims by third parties against the County to the extent that the County is liable to such third party for such claim without regard to the involvement of the Contractor. The Contractor acknowledges that in agreeing to the foregoing indemnification, County is relying on, and does not waive or intend to waive, the monetary limitations, or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act, (C.R.S §24-10-101 et seq.), as from time-to-time amended or as otherwise available to County, its commissioners, officers and employees, all of which rights, immunities and protections County expressly retains. 11. Notices: Any notice and all written communications required under this Agreement shall be given in writing by personal delivery, FAX or mail to the appropriate party at the following addresses: a) Contractor: B.P. Reclamation PO Box 8317 Breckenridge, CO 80424 Phone: 970-453-5243 Fax: 970-547-0730 4 b) County: Ellie Caryl Eagle County/ECO Trails PO Box 1070 Gypsum, CO 81637 Phone: 970-328-3523 Fax: 970-328-3539 c) Notices shall be deemed given on the date of delivery if delivered by personal delivery or delivery service such as Federal Express or United Parcel Service, or three days after the date of deposit, first class postage prepaid, in an official depository of the U.S. Postal Service. 12. Miscellaneous: a) The Contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement on the basis of race, color, religion, national origin, sex, ancestry, physical handicap, age, political affiliation or family responsibility. The contractor shall require all consultants to agree to the provisions of this subparagraph. b) The making, execution and delivery of this Agreement by the parties hereto has not been induced by any prior or contemporaneous representation, statement, warranty or agreement as to any matter other than those herein expressed and set forth herein. This Agreement embodies the entire understanding and agreement of the parties, and there are no further or other agreements or understandings, written or oral, in effect between them relating to the subject matter hereof. This Agreement may not be amended, including by any modification or, deletion from or addition to the scope of the Services, except by a written document of equal formality executed by both parties hereto. c) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado, without reference to choice of law rules. The parties agree that venue in any action to enforce or interpret this Agreement shall be in the District Court in the 5th District for the State of Colorado. d) This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. e) If either party pursues legal action in connection with a breach of this Agreement, the prevailing party shall be entitled to its costs and expenses, including reasonable attorney fees. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its • BOARD OF COUNTY COMMISSIONERS ~~ /~~ OG ATTEST: ~ ~,~g] ~ .: ~, ~~ ~ By: Clerk to the Board of Tom . Stone, C airman County Commissioners CONTRACTOR .~~ P Q2c.~~~o,~ ~ I ~' L BY~ C,t- Title: ~~,5 ~ ~ 6 GENERAL CONDITIONS 1. Contractor shall provide and pay for labor, materials, equipment, tools, utilities, permits, licenses, transportation, and other facilities and services necessary for proper execution and completion of the Work. 2. If Contractor fails to obtain the tax exemption(s) applicable to public works projects from sales, consumer, use and similar taxes, Contractor shall pay the same. Owner (County) will cooperate with Contractor to obtain tax exemption for this project. 3. Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost thereof. Any failure by Contractor to do so will not relieve him from responsibility for successfully performing the Work without additional expense to the Owner. Owner assumes no responsibility for any understanding or representations concerning conditions made by any of its officers, employees or agents prior to the execution of this Agreement, unless such understanding or representations are expressly stated in the Agreement. 4. Before commencing activities, Contractor shall: (1) verify field conditions; (2) carefully compare this and other information known to Contractor with the Agreement; and (3) promptly report errors, inconsistencies or omissions discovered to Owner. 5. Contractor shall supervise and direct the Work, using Contractor's best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work. 6. Contractor, as soon as practicable, shall furnish in writing to the Owner the names of subcontractors and suppliers for each portion of the Work. 7. No charge shall be made by Contractor for hindrances or delays from any cause whatever during the progress of any portion of the Work, unless such hindrance or delay is caused in whole or in part by acts or omissions within the control of Owner. In any event, Owner may grant an extension of time for the completion of the Work, provided it is satisfied that delays or hindrances were due to causes outside Contractor's control, e.g., weather, or to acts of omission or commission by the Owner, provided that such extensions of time shall in no instance exceed the time actually lost to Contractor by reason of such causes, and provided further that Contractor shall have given Owner immediate (as determined by the circumstances, but not exceeding 72 hours) notice in writing of the cause of the detention or delay. 8. Contractor shall deliver, handle, store and install materials in accordance with manufacturers' instructions. 9. Contractor warrants to Owner that: (1) materials and equipment furnished under the Agreement will be new and of good quality; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Agreement. 10. Contractor shall comply with and give notices required by all federal, state and local laws, statutes, ordinances, building codes, rules and regulations applicable to the Work. If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, rules or regulations without notice to Owner, Contractor shall assume full responsibility for such Work and shall bear the attributable costs. Contractor shall promptly notify Owner in writing of any conflicts between the specifications for the Work and such governmental laws, rules and regulations. 11. Contractor shall keep the premises and surrounding area free from accumulation of debris and trash related to the Work. 12. The performance of the Work maybe terminated at any time in whole, or from time to time in part, by Owner for its convenience. Any such termination shall be effected by delivery to Contractor of a written notice ("Notice of Termination") specifying the extent to which performance of the Work is terminated and the date upon which termination becomes effective. After receipt of a Notice of Termination, and except as otherwise directed by Owner, Contractor shall, in good faith, and to the best of its ability, do all things necessary, in the light of such notice and of such requests in implementation thereof as Owner may make, to assure the efficient, proper closeout of the terminated Work (including the protection of Owner's property). Among other things, Contractor shall, except as otherwise directed or approved by Owner: a. stop the Work on the date and to the extent specified in the Notice of Termination; b. place no further orders or subcontracts for services, equipment or materials except as may be necessary for completion of such portion of the Work as is not terminated; c. terminate all orders and subcontracts to the extent that they relate to the performance of Work terminated by the Notice of Termination; d. assign to Owner, in the manner and to the extent directed by it, all of the right, title and interest of Contractor under the orders or subcontracts so terminated, in which case Owner shall have the right to settle or pay any or all claims arising out of the termination of such orders and subcontracts; e. with the approval of Owner, settle all outstanding liabilities and all claims arising out of such termination or orders and subcontracts; and f. deliver to Owner, when and as directed by Owner, all documents and all property which, if the Work had been completed, Contractor would be required to account for or deliver to Owner, and transfer title to such property to Owner to the extent not already transferred. In the event of such termination, Contractor shall be paid for the Work performed up to the termination date. Exhibit A TRAIL REVEGETATION Scope of Work PART1 GENERAL 1.01 DESCRIPTIONS A. Work Included: seeding and mulching. 1.02 SUBMITTALS A. Submit seed mix and mulch with method of application for approval. PART2 PRODUCTS 2.01 SEED MIX A. General: At least 95% pure and having minimum germination of 85%. All seed shall be "new crop", delivered in the original containers, unopened, bearing dealer's guaranteed analysis. B. Use of the Following Seed Mix as directed by the Engineer: SEED MIX for 7,900 - 10,000 ft. (dry site) All native seeds, cultivars from commercial sources. All weed free, pure live seed. Figured at 112 seeds/sq ft (1 acre = 43,560 sq ft x 112 seeds/sq ft = 4,878,720 seeds). Broad cast seeder on disturbed soil. Seed species Seeds/lb # lbs # seeds GRASSES Sheep fescue, Festuca ovina cover 680,000 1.0 680,000 Idaho fescue, Festuca idahoensis var. Joseph 450,000 0.5 225,000 Slender wheatgrass, Elymus trachycaulum var. San Luis 159,000 3.0 477,000 Western wheatgrass, Pascopyrum smithii var. Arriba 110,000 3.0 330,000 Alpine bluegrass, Poa alpine 1,000,000 0.5 500,000 (not Greuning variety, one from close to Colorado, high elevation) Tufted hairgrass, Deschampsia caespitosa 2,500,000 0.5 1,250,000 (look for a source collected from Colorado) WILDFLOWERS Blue flax, Linum lewisii 293,000 3.0 879,000 Rocky Mountain penstemon, Penstemon strictus var. Bandera 592,000 0.5 296,000 Grand Total (113 seeds/sq ft/ac) 12 4,637,000 C. All seed shall be furnished in bags or containers clearly labeled to show the name and address of the supplier, the seed name, the lot number, net weight, origin, the percent of weed seed content, the guaranteed percentage of purity and germination, pounds of pure live seed (PLS) of each seed species, and the total pounds of PLS in the container. All brands shall be free from noxious seeds as Russian or Canadian Thistle, Europe and Bindweed, Johnson Grass, and Leafy Spurge. The Contractor shall furnish to the Engineer a signed statement certifying that the seed is from a lot that has been tested by a recognized laboratory for seed testing within six months prior to the date of delivery. Seed which has become wet, moldy, or damaged in transit or in storage will not be acceptable. Seed types and amount of PLS required per acre shall be provided in accordance with the Contract. Seed and seed labels shall conform to all current State and Federal regulations and will be subject to the testing provisions of the Association of Official Seed Analysis. Computations for quantity of seed required on the project include the percent of purity and percent of germination. If seed available on the market does not meet the minimum purity and germination percentages specified, the Contractor must compensate for a lesser percentage of purity of germination by furnishing sufficient additional seed to equal the specified project. Product comparison shall be made on the basis of PLS in pounds, stated one each seed bag. The formula used for determining the quantity of PLS shall be: Pounds of Seed x (Purity xGermination) =Pounds of PLS. 2.02 FERTILIZER A. Use "Biosol" or other Engineer approved natural fertilizer having the following guaranteed chemical analysis: Ingredient Percentage of Weight Nitrogen 6% Phosphorus 1 Water Soluble Potash 3% B. Fertilizer shall conform to the applicable State fertilizer laws. It shall be uniform in composition, dry, and free flowing, and shall be delivered to the site in the original unopened containers, each bearing the manufacturer's guaranteed analysis. Fertilizer which becomes caked or damaged will not be accepted. 2.03 STRAW MULCHING Straw or hay, free of noxious weeds, containing not more than 5% seed by weight. Straw shall be in natural, field-cut lengths, not chopped or in lengths less than 12", typically. 2.04 HYDRAULIC MULCHING Wood cellulose fiber for hydraulic mulching shall not contain any substance or factor which might inhibit germination or growth of grass seed. It shall be dyed an appropriate color to allow visual metering of its application. The wood cellulose fibers shall have the property of becoming evenly dispersed and suspended when agitated in water. When sprayed uniformly on the surface of the soil, the fibers shall form ablotter-like ground cover which readily absorbs water, and allows infiltration to the underlying soil. Weight specifications from suppliers, and for all applications, shall refer only to air dry weight of fiber, a standard equivalent to 10 per cent moisture. The mulch material shall be supplied in packages having a gross weight not in excess of 100 pounds, and shall be marked by the manufacturer to show the air dry weight content. The Contractor shall obtain certifications from suppliers that laboratory and field testing of their product has been accomplished, and that it meets all of the foregoing requirements pertaining to wood cellulose fiber mulch. PART 3 EXECUTION 3.01 SEEDING A. Apply seed mix at uniform rates indicated. B. Hydraulically seed all slopes. 3.02 FERTILIZING Apply fertilizer at rate of 10001bs per acre. 3.03 HYDRAULIC MULCHING AND TACKIFIER A. Straw Mulching: Apply to all areas, after seeding and watering has been completed, at uniform coverage rate of 80 bales/acres. B. Hydraulic Mulching and Applying Tackifier: Hydraulic mulch and tackifier shall be applied to all areas after seeding and straw mulching. Cellulose fiber mulch shall be added after the proportionate quantities of water and other approved materials have been placed in the slurry tank. All ingredients shall be mixed to form a homogeneous slurry. The operator shall spray the slurry mixture uniformly over the designated seeded area. Unless otherwise ordered for specific areas, wood cellulose fiber mulch shaI1 be applied at a rate of Z00 pounds per acre. Hydraulic mulching shall not be done in the presence of free surface water. Mulch tackifier shall be applied over the seeded area at a rate of 200 pounds per acre. 3.04 WATERING When required by Engineer, apply water at rate specified on the plans until project acceptance. END OF SECTION