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Home My WebLink AboutC16-406 Noble Welding and FabricationAGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND NOBLE WELDING AND FABRICATION, INC. THIS AGREEMENT (“Agreement”) is effective as of the _______day of ______________, 2016 by and between Noble Welding and Fabrication, Inc.(hereinafter “Contractor”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, County desires to hire Contractor to perform railing and post repairs (the “Project”) on the approximately 500 foot stretch of the Eagle Valley Trail at Dowd Junction near the U.S. Highway 6 Mile Marker 174 in Eagle County, Colorado (the “Property”); 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 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Contractor and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and County agree as follows: 1. Services or Work. Contractor agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services or work at the Property as described in Exhibit A (“Services” or “Work”) which is attached hereto and incorporated herein by reference and Contractor also agrees to comply with and perform the services in accordance with the General Requirements identified in Exhibit A. The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Contractor agrees to furnish the Services no later than December 31, 2016 consistent with the applicable standard of care. 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. County’s Representative. The ECO Trails Department’s designee shall be Contractor’s contact with respect to this Agreement and performance of the Services. DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 C16-406 2 3. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 10 hereof, shall continue in full force and effect through completion of the Services and during any warranty period set forth herein. 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 of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations 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 $1,488.00. 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 for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate 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 return 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 31 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. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 3 6. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. 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 of this 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 of the 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 of this Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor shall be responsible for the acts and omissions of its 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 of Insurance. 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 $1,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. i. 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 of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. Contractor’s certificates of insurance shall include subcontractors, if any as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. iii. 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 DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 4 not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental 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 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 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. 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 of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County, Colorado Attention: Jared Barnes 3289 Cooley Mesa Road Post Office Box 1070 Gypsum, CO 81637 Telephone: 970-328-3528 Facsimile: 970-328-3539 E-Mail: Jared.Barnes@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, CO 81631 DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 5 Telephone: 970-328-8685 Facsimile: 970-328-8699 E-Mail: atty@eaglecounty.us CONTRACTOR: Noble Welding and Fabrication, Inc. Attention: Mike Kline PO Box 1671 Gypsum, CO 81637 Telephone: 970-524-0186 Fascimile: 970-524-0983 E-Mail: nobleweldingfab@yahoo.com 10. 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. County shall pay Contractor for Services satisfactorily performed to the date of termination. 11. 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. 12. 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 of a fully executed copy of the signature page; (ii) the image of the signature of an 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. 24-71.3-101 to 121. 13. Other Contract Requirements and Contractor Representations. 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 of the Services. b. Contractor will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of the Services. c. To the extent possible, Contractor has correlated the results of such observations, examinations, investigations, tests, reports, and data with the terms and conditions of this Agreement. DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 6 d. To the extent possible, Contractor has given County written notice of all conflicts, errors, or discrepancies. e. Contractor shall be responsible for the completeness and accuracy of the Services and shall correct, at its sole expense, all significant errors and omissions in performance of the Services. The fact that the County has accepted or approved the Services shall not relieve Contractor of any of its 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 Agreement. 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. Contractor hereby represents and warrants that it will perform the Services in a good and workmanlike manner and guarantees all Work against defects in materials or workmanship for a period of one (1) year from the date the Services or Work is accepted by County or such longer period as may be provided by law or otherwise agreed to by the parties. Any materials incorporated in the Work shall be new and of good quality. Contractor is not responsible for repairing work due to root damage. h. All guarantees and warranties of any materials furnished by Contractor or any subcontractor by any manufacturer or supplier are for the benefit of County. If any manufacturer or supplier of any materials furnishes a guarantee or warrantee for a period longer than one (1) year, then Contractor’s guarantee or warrantee shall extend for a like period as to such materials. i. Contractor warrants that title to all Work and materials shall pass to County either by incorporation into the Property or upon receipt by Contractor of payment from County (whichever occurs first) free and clear of all liens, claims, security interests or encumbrances. Notwithstanding the foregoing, Contractor assumes all risk of loss with respect to the materials until the same are installed and County has inspected and approved the Work. j. Within a reasonable time after receipt of written notice from County, and in accordance with County’s written instructions, Contractor shall correct at its own expense, without cost to County, and without interruption to County: (i) any defects in materials or workmanship which existed prior to or during the period of any guarantee or warranty provided in this Agreement; and (ii) any damage to any other Work or property caused by such defects or the repairing of such defects; and DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 7 (iii) if Contractor does not promptly comply with the terms of such instructions or in an emergency where delay would cause serious risk of loss or damage, County may have the defective Work removed and replaced and all direct and indirect costs of such removal and replacement, including compensation for professional services shall be paid for by Contractor. k. Guarantees and warranties shall not be construed to modify or limit any rights or actions County may otherwise have against Contractor in law or in equity. l. 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 of independent contractor. Contractor shall have no authority to bind County. m. 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. n. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. o. 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. p. This Agreement shall be binding upon and shall inure to the benefit of the 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. q. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. r. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. s. 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. DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 8 t. The Contractor, if a natural person eighteen (18) years of age 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 Agreement. 14. Prohibitions on Government Contracts. As used in this Section 14, 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. a. 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 certify 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-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. Contractor 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. 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: i. 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 DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 9 employing or contracting with the undocumented individual; except that Contractor 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. 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 notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and County terminates the Agreement for such breach. [REST OF PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 10 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ______________________________ Brent McFall, County Manager NOBLE WELDING AND FABRICATION, INC. By:________________________________ Print Name: _________________________ Title: ______________________________ DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 Estimate Date 8/18/2016 Estimate # 509 Name / Address Eagle County P.O. Box 1070 Gypsum, CO 81637 Job Name and Location Dowd Junction Phase One Noble Welding and Fabrication, Inc. P.O. Box 1671 Gypsum, CO 81637 Terms Net 30 WO# Job Name 3300 dowd repairs Signature _____________________________________ Accepted by: Date: Phone # 970-524-0186 Fax # 970-524-0983 Total Subtotal Sales Tax (4.4%) Description Qty Cost Total Dowd Railing repair. Repair posts that are leaning out, and fix rail and panels as needed. about 8 hours with welder and helper. 8 124.00 992.00 Little to no new steel is anticipated 0.00 0.00 Repair expansion joints at Eagle Vail railing about 4 hours 4 124.00 496.00 $1,488.00 $1,488.00 $0.00 Exhibit A DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 EXHIBIT A, Page 2 General Requirements 1. Work zone shall be limited to the existing trail corridor to the extent possible. If Contractor proposes to work from or stage on a Town, County, or CDOT right of way, prior to commencing Work, contractor shall identify all areas where Work and staging will be located outside of the trail corridor and on a Town, County, or CDOT road right-of-way. Contractor to obtain necessary approvals to operate on Town, County, or CDOT right-of-way if outside of the existing trail corridor. Contractor shall be responsible for producing Traffic Control Plans acceptable to Town, County or CDOT for work or staging in road right of way. A copy of any required permits will be provided to ECO Trails prior to commencing work. Contractor to consider that CDOT permit may take up 3 to 6 weeks to procure. 2. Prior to commencing any excavation Work, if called for in the scope of work, Contractor shall identify all utilities and get locates for all areas of Work. Contractor is responsible for any and all necessary coordination with any utilities and utility companies impacted by the Work. Contractor hereby assumes all responsibility for any damage to utilities and shall promptly repair and restore any damaged utilities at its sole cost and expense. 3. Hours of construction shall be limited to Monday through Friday, 8:00 am to 5:30 pm. Weekend work may be allowed, subject to ECO Trails review of the request. 4. Prior to commencing any Work, Contractor shall provide County with its anticipated Work Plan including date of work, duration of Work, access to Work and staging locations. 5. The Work, staging and access areas shall be immediately restored to same or better condition following completion of the Work to the satisfaction of County. 6. Contractor will notify County a minimum of 72 hours prior to performing the Work. 7. Construction safety is the sole responsibility of Contractor which shall include, but not be limited to, compliance with safety laws, regulations and standard practices. 8. The Work shall be performed to the satisfaction of County and in a good workmanlike manner. If any Work is found to be defective Contractor shall correct such Work at its sole cost and expense. 9. Contractor shall provide traffic control for areas of Work using, at a minimum, on each end of the work zone one (1) sign, two-hundred (200) feet prior to construction stating “construction ahead” and/or “trail closed”, and cones, barrels or other barriers to close and block the trail per the Scope of Work below. Contractor shall provide a safe detour around the construction zone and inform trail users of the detour. Contractor shall be solely responsible for ensuring adequate signage is in place to assure safety of the public both during and after hours of construction. 10. County is not responsible for monitoring or assuring Contractor’s compliance with safety laws, regulations and standard practices. DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78 Exhibit B DocuSign Envelope ID: BFB252F5-88B8-40B1-AD5F-5B5D10A98F78