HomeMy WebLinkAboutC15-175 GMCO Corporation • AGREEMENT BETWEEN EAGLE COUNTY AND GMCO CORPORATION FOR THE SUPPLY AND DELIVERY OF MAGNESIUM CHLORIDE THIS AGREEMENT is dated as of the day of .44)k:.- L , 2015, by and between Eagle County, Colorado, a body corporate and politic, acting by and through its Board of County Commissioners (hereinafter called "County"), and GMCO Corporation, a Colorado corporation with its principal place of business at 228 Powerline Road,Rifle, CO 81650 (hereinafter called"Vendor"). County and Vendor,in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1 -PRODUCT Vendor shall supply and deliver to County a magnesium chloride product that contains a minimum 30% magnesium chloride (the "Product") as more specifically provided in Vendor's bid, which is attached hereto as Exhibit A and incorporated by this reference. County has no obligation to purchase any amount of the Product. The Product will be available as set forth in Exhibit A and will be purchased by County at County's sole discretion. ARTICLE 2 -COUNTY'S REPRESENTATIVE The Eagle County Road & Bridge Director, or his designee shall be the County's representative for this Agreement. ARTICLE 3 -CONTRACT TIME 3.1 Vendor will make the Product available in the quantities and locations identified in Exhibit A from April 15,2015 through November 30, 2015. 3.2 Liquidated Damages: County and Vendor recognize that time is of the essence of this Agreement and that County will suffer financial loss if the Product is not available as specified in paragraph 3.1. They also recognize the delays, expense, and difficulties involved in proving a legal or arbitration preceding the actual loss suffered by County if the Product is not available on time. Accordingly, instead of requiring such proof, County and Vendor agree that as liquidated damages for delay (but not as a penalty) Vendor shall pay County Three Hundred dollars ($300.00) for each day the Product is not available as set forth in Exhibit A. 3.3 County may terminate this Agreement, in whole or in part, for any reason, at any time, with or without cause. Any such termination shall be effected by delivery to Vendor of a written notice of termination specifying the date upon which termination becomes effective. In such event, Vendor shall be compensated for all Product delivered and accepted by County prior to the date of termination. Any guarantees or warranties with respect to the Product delivered shall survive termination. ARTICLE 4 -CONTRACT PRICE 4.1 The funds appropriated for this project are equal to or in excess of the contract amount. 4.2 For the Product provided hereunder, County will pay Vendor the amounts provided in Exhibit A. The unit price for the Product as in Exhibit A will not change without a signed amendment to the Agreement. 4.3 Payment will be made for magnesium chloride accepted by County and will be paid within thirty (30) days of receipt of a proper and accurate invoice from Vendor. The invoice shall include the quantities of and location of the Product sold to County under this Agreement. Upon request, Vendor shall provide County with such other supporting information as County may request. 4.4 County will not withhold any taxes from monies paid to the Vendor hereunder and Vendor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. 4.5 The signatories to this Agreement aver to their knowledge, no employee of the County has any personal or beneficial interest whatsoever in the service or property described in this Agreement. Vendor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any matter or degree with the performance of Vendor's services and Vendor shall not employ any person having such known interests. 4.6 Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Vendor in respect of any period after December 31 without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29-1-101 et seq.) and the TABOR Amendment(Colorado Constitution,Article X, Sec. 20). ARTICLE 5 -VENDOR'S REPRESENTATIONS In order to induce County to enter into this Agreement Vendor makes the following representations: 5.1 Vendor shall supply and deliver the magnesium chloride in the time frames and as provided in Exhibit A. 5.2 Vendor has familiarized himself with the nature and extent of the Contract Documents, Work, locality, and with all local conditions, and federal, state, and local laws, ordinances, rules and regulations that in any manner may affect cost,progress, or performance of under this Agreement. 5.3 Vendor has made, or caused to be made, examinations, investigations, and tests and studies of such reports and related data as he deems necessary for the performance of the Work at the Contract Price, within the Contract Time, and in accordance with other terms and conditions of the Contract Documents; and no additional examinations, investigations, tests, reports, or similar data are, or will be required by Vendor for such purposes. 5.4 Vendor will be responsible for supply and delivery of the Product to County in a professional and competent manner and in accordance with the standard of care, skill and diligence applicable similar vendors supplying similar Product. 5.5 Vendor warrants merchantability and fitness for its intended use and purpose. 5.6 All guarantees and warranties related to the Product furnished to Vendor by any manufacturer or supplier are for the benefit of County. 5.8 Notwithstanding anything to the contrary set forth herein or in Exhibit A, Vendor assumes all risk of loss with respect to the Product until the Product is delivered to the County, at which time County shall assume all risk of loss with respect to the Product. Title shall pass to County after Vendor has delivered the Product and County has inspected and accepted the Product. 2 • 5.9 Within a reasonable time after receipt of written notice, Vendor shall correct at its own expense, without cost to County any defects in the Product which existed prior to or during the period of any guarantee or warranty provided in this Agreement. 5.10 Guarantees and warranties shall not be construed to modify or limit any rights or actions County may otherwise have against Vendor in law or in equity. 5.11 The Vendor shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Contractor, its employees, agents or any of its subcontractors hereunder; and Vendor shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Vendor. This paragraph shall survive expiration or termination hereof. ARTICLE 6 -MISCELLANEOUS 6.1 No assignment by a party hereto of any rights under, or interests in this Agreement will be binding on another party hereto without the written consent of the party sought to be bound; and specifically, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and 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 this Agreement. 6.2 County and Vendor each binds himself, his partners, successors, assigns and legal representatives to the other party hereto, in respect to all covenants, agreements, and obligations contained in the Agreement. 6.3 This Agreement supersedes all previous communications, negotiations and/or contracts between the respective parties hereto, either verbal or written, and the same not expressly contained herein are hereby withdrawn and annulled. This is an integrated agreement and there are no representations about any of the subject matter hereof except as expressly set forth in the Contract Documents. 6.4 Invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provision was omitted. 6.5 This Agreement may amended upon mutual agreement, in writing, signed by both parties. 6.6 NOTICE: Any notice and all written communications required under this Agreement shall be (i) personally delivered, (ii) mailed in the United States mails, first class postage prepaid, or (iii) transmitted by facsimile machine together with a hard copy conveyed by delivery or mail, to the appropriate party at the following addresses: County: With a copy to: Board of County Commissioners, Eagle County Road&Bridge Eagle County, Colorado P. O.Box 250 P. O. Box 850 Eagle, CO 81631 Eagle, CO 81631 Telephone: (970) 328-3540 Telephone: (970)328-8605 Fax: (970) 328-3546 Fax: (970) 328-7207 Vendor: GMCO Corporation P.O.Box 1480 Rifle, CO 81650 Phone: 970-625-9100 Fax: 970-625-9101 Mailed notices will be deemed given three business days after the date of deposit in a regular depository of the United States Postal Service, and Fax notices will be deemed given upon transmission, if during business hours, or the next business day. Either party can change its address for notice by notice to the other in accordance with this paragraph. 6.7 This Agreement represents the entire Agreement between the parties hereto. There are no Contract Documents other than this Agreement and Exhibits A and B hereto. The Agreement may only be altered, amended, or repealed in writing. ARTICLE 7 -JURISDICTION AND VENUE: 7.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. ARTICLE 8 -PROHIBITIONS ON GOVERNMENT CONTRACTS: As used in this Section 14,the term undocumented individual will refer to those individuals from foreign countries not legally in the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Vendor has any employees or subcontractors,Vendor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement,Vendor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Vendor will participate in the E-verify Program or other Department of Labor and Employment program ("Department Program")in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Vendor shall not: i. Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Vendor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Vendor has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E-Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: http://www.dhs.gov/xprevprot/programs/gc 1185221678150.shtm c. Vendor shall not use either the E-verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. 4 d. If Vendor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Vendor shall be required to: i. Notify the subcontractor and County within three (3) days that Vendor has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the undocumented individual; except that Vendor shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. e. Vendor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Vendor violates these prohibitions, County may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Vendor shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Vendor violates this provision of this Agreement and County terminates the Agreement for such breach. ARTICLE 9—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 between County and Vendor or County and Vendor's employees. To the extent applicable, Vendor and its employees shall be, and shall perform as, independent contractors. No officer, agent, subcontractor, employee, or servant of Vendor shall be, or shall be deemed to be, the employee, agent or servant of County. Vendor shall be solely and entirely responsible for the means and methods to carry out any services that may be required under this Agreement and for Vendor's acts and for the acts of its officers, agents, employees, and servants during the performance of this agreement. Neither Vendor nor its officers, agents, subcontractors, employees or servants may represent, act, purport to act or be deemed the agent, representative, employee or servant of County. ARTICLE 10—INSURANCE REQUIREMENTS 10.1 At all times during the term of this Agreement,Vendor shall maintain insurance on its own behalf in the following minimum amounts: 10.1.1 Workmen's Compensation,disability benefits, and other similar employee benefit acts,with coverage and in amounts as required by the laws of the State of Colorado; 10.1.2 Comprehensive Automobile Insurance shall be carried in the amount of$1,000,000 for bodily injury and$1,000,000 for property damage, each occurrence. All liability and property damage insurance required hereunder shall be Comprehensive General and Automobile Bodily Injury and Property Damage form of policy. 10.1.3 Comprehensive liability and property damage insurance issued to and covering Vendor and any subcontractor with respect to all Work performed under this Agreement and shall also name County as an additional insured, in the following minimum amounts: Bodily Injury Liability: Each Person: $1,000,000 Each Accident or Occurrence: $1,000,000 Property Damage Liability: Each Accident or Occurrence: $1,000,000 10.1.4 If the scope of Services in this Agreement requires the acceptance, transport, storage or disposal of any hazardous materials or regulated substances the policy shall include coverage for on and off-site cleanup of known and unknown pre-existing conditions arising from the Vendor's facility; on and off-site cleanup of new conditions arising fromVendor's facility; third-party claims for on and off-site bodily injury and property damage; and claims resulting in bodily injury, property damage or clean-up costs associated with a pollution condition from transported cargo if the scope of Services in the Agreement requires the transportation of any hazardous materials. Minimum coverage shall be$5,000,000 per loss and$5,000,000 products/completed operations aggregate. 10.2 Vendor shall purchase and maintain such insurance as required above and the certificate of insurance is attached hereto as Exhibit B. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. [Rest of page intentionally left bank] 6 IN WITNESS WHEREOF, the parties have executed this Agreement this -11(: day day of 4I7aL— ,2015. COUNTY OF EAGLE, STATE OF COLORADO,By and Through Its BOARD OF COUNTY COMMISSIONERS By: 11111 Ad //L4 2._/ if 0 o .thy C andler t.,enry, Chairman Attest: a ' ` By: PO. Teak J. Simonton, Clerk to the Board VENDOR: GMCO CORPORATION B • � Titl . 1 de,r STATE OF COLORADO ) )ss: County of Garfield ) The foregoing instrument was acknowledged before me by �� ,as of this day of , 2015. My commission expires: /3 —no Notary 'ublic • EXHIBIT "A" EAGLE COUNTY 2015 MAGNESIUM CHLORIDE PROJECT Location Description QTY Unit Unit Price Amount Glenwood Springs Supply Magnesium Chloride for and Gypsum Rail Pick-Up and Distribution by 650,000 Gallons $0,51 6331,503 Yards Eagle County Staff TOTAL FOR PROJECT 5331 ,500•00 Project Notes: 1. Bid prices to be f.o.b Glenwood Springs rail yards on Devereux Road in Glenwood Springs CO, and Gypsum rail yards on Railroad Avenue in Gypsum CO. 2. Contractor shall have a minumum of 30,000 gallons of magnesium chloride available for pick-up from 6:00 a.m. to 7:00 p.m., Monday thru Friday beginning April 15, 2015 and continuing thru November 30, 2015 at Glenwood Springs rail yards. 3. Contractor shall have a minimum of 40,000 gallons delivered per occurrence to Gypsum rail yard within 10 days of"Request to Deliver" from Eagle County. Deliveries shall occur as needed by "Request to Deliver" from Eagle County beginning April 15, 2015 thru November 30, 2015. 4. The magnesium chloride product that is bid shall contain a minimum of 30% magnesium chloride. Company Name (Bidder): ( 1mC3 Corpora-non Client#: 120981 GMCO2 ACORD,. CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 04/22/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ACT Joan Teeple HUB International Ins Svcs Inc PHONE ) 720-207-2329 FAX 866 -243-0727 ,No): 2742 Crossroads Blvd (A/C,No,Ext E-MAIL p oan.tee I ADDRESS: e @hubinternational.com Grand Junction, CO 81506 INSURER(S)AFFORDING COVERAGE • NAIC# 888 245-8011 INSURER A:Zurich American Insurance Co 16535 INSURED INSURER B:American Guarantee&Liability 26247 GMCO Corp Pinnacol Assurance Company 41190 GMCO LLC INSURER C: p y PO Box 1480 INSURER D Rifle, CO 81650 INSURER E: INSURER F: CA Resident License#0757776 COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) LIMITS A GENERAL LIABILITY X X CP0399130613 12/31/2014 12/31/2015 EACH OCCURRENCE $1,000,000 X COMMERCIAL GENERAL LIABILITY PREMISES Ea occurrence) $300,000 _ CLAIMS-MADE X OCCUR MED EXP(Any one person) $10,000 X PD Ded:5,000 PERSONAL&ADV INJURY _$1,000,000 GENERAL AGGREGATE $2,000,000 GE 'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $2,000,000 POLICY X PECOT- X LOC $ A AUTOMOBILE LIABILITY X X CP0399130613 12/31/2014 12/31/2015(EOa acBcideDtSINGLE LIMIT $1,000,000 X ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED — AUTOS AUTOS BODILY INJURY(Per accident) $ X HIRED AUTOS X NON-OWNED PROPERTY DAMAGE AUTOS (Per accident) $ B x UMBRELLA LIAB X OCCUR AUC485679104 12/31/2014 12/31/2015 EACH OCCURRENCE $5,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $5,000,000 DED X RETENTION$0 $ C WORKERS COMPENSATION X 4155502 07/01/2014 07/01/2015 X WC STATU- OTH- AND EMPLOYERS'LIABILITY Y/N TORY I IMITS FR ANY OFFICER/MEMBER EXCLUDED?ECUTIVE N/A Colorado E.L.EACH ACCIDENT $1,000,000 A (Mandatory in NH) X WC9691363 07/01/2014 07/01/2015 E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below Arizona,Texas E.L.DISEASE-POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space Is required) RE:2015 Supplying of Magnesium Chloride Project Eagle County Road &Bridge is named as additional insured with respect to General Liability and Automobile Liability. CERTIFICATE HOLDER CANCELLATION Eagle County SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN P.O. Box 250 ACCORDANCE WITH THE POLICY PROVISIONS. Eagle,CO 81631 AUTHORIZED REPRESENTATIVE . � ©1988-2010 ACORD CORPORATION.All rights reserved. ACORD 25(2010/05) 1 of 1 The ACORD name and logo are registered marks of ACORD #53464247/M3454015 AW03