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HomeMy WebLinkAboutC16-110 Optimum Event ConcessionsAGREEMENT FOR SERVICES BETWEEN EACLE COUNTY, COLORADO AND OPTIMUM EVENT CONCESSIONS. LLC THIS AGREEMENT ("Agreement") is effective as of the Zl t^ Ou, of IV)o..h ,2016by and between Optimum Event Concessions, LLC, a Colorado limited liability company (hereinafter "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, the County desires to hire Contractor to provide bartenders for the operation of beer tents at the 2016 Eagfe County Fair and Rodeo (the "Project") at the Eagle County Fairgrounds, located at 426 Fairgrounds Road, Eagle, Colorado 8163I (the "Fairgrounds"); and WHEREAS, Contractor is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph I hereof; and WHEREAS, this Agreement shall govem the relationship between Contractor and County in connection with the Services. \GREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and County agree as follows: l. Services or Work. Contractor agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services or work described in Exhibit A ("Services" or "Work") which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. Contractor asrees to fumish the Services in accordance with the schedule established in Exhibit A. Contractor will provide Services on July 20, July 21, July 22 and luly 23, 20'16 during the 2016 Eagle County Fair and Rodeo. If no completion date is specified in Exhibit A, then Contractor agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. Contractor represents that its employees and contractors are TIPS trained. By signing below Contractor represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. 2. Counlv's Representative. The Facilities Management Department's designee shall be Contractor's contact with respect to this Agreement and performance of the Services. 3. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions ofparagraph I I hereof, shall continue in full force and effect until the Services are satisfactorily completed in accordance with the terms of this Agreement. Eagle TO FORM s Office Eagle County Ccmmissioners, OlficeC16-110 4. Extension or Modification. Any amendments or modifications shall be in writing signed by both parties. No additional services or work performed by Contractor shall be the basis for additional compensation unless and until Contractor has obtained written authorization and acknowledgement by County for such additional services in accordance with County's internal policies. Accordingly, no course ofconduct or dealings between the parties, nor verbal change orders, express or implied acceptance ofalterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement. Contractor's rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. County shall compensate Contractor for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed $5,000.00. In addition, County agrees to reimburse Contractor for any credit card fees charged by the bank. Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. a. Payment will be made via check at the conclusion of the Services for Services satisfactorily performed, and upon receipt ofan invoice from Contractor. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. b. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Contractor was improper because the Services for which payment was made were not performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Contractor shall forthwith retum such payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. c. County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor 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. d. 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 Contractor in respect of any period after December 3 I of any year, without an appropriation therefor 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-l0l et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 6. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise ofContractor. Contractor shall not enter into any subcontractor agreements for the performance of any of the Services or additional services without County's prior written consent, which may be withheld in County's sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to the subject Project during the performance ofthis Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by County and to the extent ofthe Services to be performed by the subcontractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contractor, by this Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions ofthis Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor shall be responsible for the acts and omissions ofits agents, employees and subcontractors. 7. Insurance. Contractor agrees to provide and maintain at Contractor's sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a.Types oflnsurance. i. Workers' Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $ I ,000,000 per occurence and $ I ,000,000 aggregate limits. iv. Liquor Liability coverage with limits of liability not less than $l,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. t. 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. A certificate ofinsurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. Contractor's certificates ofinsurance shall include subcontractors, ifany as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. nr. The insurance provisions of this Agreement shall survive expiration or termination hereof. iv. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Govemmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. v. Contractor is not entitled to workers' compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 8. Indemnification. The Contractor shall indemnifi 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 or any of its subcontractors hereunder; and Contractor 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 Contractor. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents. All documents (including electronic files) and materials obtained during, purchased or prepared in the performance ofthe Services shall remain the property ofthe County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation ofreceipt. Either party may change its address for purposes ofthis paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County, Colorado Eagle County Facilities Management Tanya Dahlseid P.O. Box 850 Eagle, Colorado 8163 I (e70) 328-88e2 (p) (e70) 328-88ee (0 With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 97 0-328-8699 E-Mai I : atly @eaglecounty. us CONTRACTOR: Optimum Event Concessions, LLC Ted Wenninger P.O. Box 1644 Eagle, CO 8163 I (970)390-r02s p I l. Termination. County may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with seven (7) calendar days' prior written notice to the Contractor. Upon termination of this Agreement, Contractor shall immediately provide County with all documents as defined in paragraph t hereof, in such format as County shall direct and shall return all County owned materials and documents. County shall pay Contractor for Services satisfactorily performed to the date of termination. 12. Venue. Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 13. Execution by Counterparts: Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery ofa fully executed copy ofthe signature page; (ii) the image ofthe signature ofan authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-l0l to 121. 14.Other Contract Requirements and Contractor Reoresentations. a. Contractor has familiarized itself with the nature and extent of the Services to be provided hereunder and the Property, and with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or performance ofthe Services. b. Contractor will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance ofthe Services. c. To the extent possible, Contractor has correlated the results ofsuch observations, examinations, investigations, tests, reports, and data with the terms and conditions of this Agreement. d. To the extent possible, Contractor has given County written notice ofall conflicts, errors, or discrepancies. e. Contractor shall be responsible for the completeness and accuracy ofthe Services and shall correct, at its sole expense, all significant errors and omissions in performance ofthe Services. The fact that the County has accepted or approved the Services shall not relieve Contractor ofany ofits responsibilities. Contractor shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to contractors performing similar services. Contractor represents and warrants that it has the expertise and personnel necessary to properly perform the Services and shall comply with the highest standards of customer service to the public. Contractor shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with this Agreement. This paragraph shall survive termination of this Aereement. f. Contractor agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. g. This Agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between County and Contractor except that ofindependent contractor. Contractor shall have no authority to bind County. h. Contractor represents and warrants that at all times in the performance of the Services, Contractor shall comply with any and all applicable laws, codes, rules and regulations. This Agreement contains the entire agreement between the parties with respect to the subject matter hereofand supersedes all other agreements or understanding between the parties with respect thereto. j. Contractor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. k. This Agreement shall be binding upon and shall inure to the benefit ofthe parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. l. No failure or delay by either party in the exercise ofany right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. m. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability ofany other provision hereof. n. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. The Contractor has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Contractor shall not employ any person having such known interests. o. The Contractor, ifa natural person eighteen (18) years ofage or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Asreement. 15.Prohibitions on Government Contracts. As used in this Section 15, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Contractor 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. Contractor 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 certifu to Contractor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Contractor 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-Verifu Program or Departmenl Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: htto: //www.dhs.eov/xprevprot/programs/ec 11g522167g150.shtm c. Contractor shall not use either the E-verifi program or other Department Program procedures to undertake pre-employment screening ofjob applicants while the public contract for services is being performed. d. If Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Contractor shall be required to: Notify the subcontractor and County within three (3) days that Contractor 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 Contractor shall not terminate the contract with the subcontractor ifduring such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. e. Contractor 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 Contractor 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, Contractor shall be liable for actual and consequential damages to County as required by law. g. County will notiff the Colorado Secretary of State if Contractor violates this provision of this Agreement and County terminates the Agreement for such breach. IREST OF PAGE INTENTIONALLY LEFT BLANKI IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. 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THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIESBELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE |SSU|NG TNSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. 926-7364 NAIC # 524210 24082 23850 41190 COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: PRODUCER Rocky Mountain Ins & Financial PO Box 548 Edwards CO 81632 926-7315 Optimum Events & Entertainment P.O. BOX 1644 co 81631 INSURERB: OHIO SECURITY INSURANCE COMPANY TOKIO MARINE SPECALry INSURANCE tNsuRER D: PINNACOL ASSUMNCE THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIODINDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE 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. INSRLTR TYPE OF INSUMNCE tN_qn WN POLICY NUMBER POLICY EFF.MM/DD/YYYN FOLICYrMM/DDA LIMITS A X I COMMERCIAL GENERAL LIABIL]TY Ti.rI I cunas-unDE lX I occuR -- 1 7LB1 035 EACH OCCURRENCE DAT|FGFTOFEN-TED- PREMISES fEa occudence) s 1,000,000 $ 100,000 MED EXP (Any one person)$ EXCLUDED 07t18t2015 07t18t2016 PERSONAL & ADV INJURY $ 1,000,000 GEI X I'L AGGREGATE LINiIIT APPLIES PER: o^rr.v lr.5!: I l,^rurrvr _,1 JECT 1,__'1 ruc OTHER: GENERAL AGGREGATE s 2,000,000 PRODUCTS - COI\,IP/OP AGG $ 1,000,000 Liquor Llability $ 1,000,000 B AU] x X -OMOBILE LIABILITY ANY AUTO ALLOWNED ['-l SCneouleoAUTOS L____] AUrOSI\./ I NON-OWNEDHIREDAUToS lz\lnurostt 8AS56629701 04t10t2015 04t10t2016 ,MtsINEU SINGLE LIMI I a accidentl $ 1,000 BODILY INJURY (Per person)$ BODILY INJURY (Per accident) PROPERry OAMAGE(Pe. accident)$ c X UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS-MADE PU8509460 07t18t2015 EACH OCCURRENCE 07t18t2016 AGGREGATE s 5,000,000 oeo lXlnereurrorus 0 PRYCOMP OPS AGG D WORKERS COMPENSANON AND EMPLOYERS'LtABtLrY Y/NANY PROPRIETORYPARTNEFVEXECUTIVE T-----OFFICERYMEMBEREXCLUDED? I N I(Mandatory in NH) lf yes, describe under DESCRIPTION OF OPERATIONS below N/A 4179577 01t01t2016 01to1t2017 VIPER I IOTH./\ISTATUTF I IFR E.L. EACH ACCIOENT $1 E.L. OISEASE. EA EMPLOYEI s 1,000,000 E.L. DISEASE. POLICY LIMIT $1 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be aftached if more space ls required) Events and Entertainment Contractor Additional Insured: Eagle County, Colorado Eagle County Facilities Management l" PoI:10.-^. TE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIEED POLICIES BE CANCELLED BEFORETHE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED INACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE @ 1988-2014 ACORD The ACORD name and logo are regislered marks of ACORD Eagle County, Colorado Eagle County Facilities Management PO BOX 850 Eagle CO 81631 EXHIBIT BACORD 25 (2014t011 AGENCY GUSTOMER ID: LOC #: ADDITIONAL REMARKS SCHEDULE ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: Certificate of Liability Insurance NAMED INSURED Optimum Events & EntertainmentMountain lns & Financial Eagle, CO 81631 @ 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ACORD 101 (2008/01)