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HomeMy WebLinkAboutC13-352 GMCO Corporation AgreementAGREEMENT BETWEEN EAGLE COUNTY AND GMCO CORPORATION FOR PURCHASE OF �rCRACK FILL MATERIAL THIS AGREEMENT is made this ,� "" day of NU t -i i'iy { 2013, by and between Eagle County ("County"), and, GMCO Corporation ("Vendor"), a Colorado corporation with its principal place of business at 228 Powerline Road, PO Box 1480, Rifle, CO 81650. WHEREAS, County desires to purchase Deery 102 crack fill material (the "Crack Fill Material") for its various County Roads from Vendor; and WHEREAS, Vendor is authorized to do business in the State of Colorado, has experience and expertise necessary to provide and sell said Crack Fill Material for its intended purpose and use to County; and WHEREAS, County and Vendor intend by this Agreement to set forth the scope of the responsibilities of Vendor in connection with the Crack Fill Material and related terms and conditions to govern the relationship between Vendor and County in connection with this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the following promises, County and Vendor agree as follows: ARTICLE 1— MATERIALS 1.1 Vendor agrees to sell eleven pallets of Crack Fill Material to the County. Vendor will deliver the Crack Fill Material to the Eagle County Road and Bridge Department, located at 3289 Cooley Mesa Road, in Gypsum, Colorado. 1.2 County shall have the right to inspect all Crack Fill Material prior to acceptance. Inspection and acceptance shall not be unreasonably delayed or refused. In the event County does not accept the Crack Fill Material for any reason in its sole discretion, then Vendor shall upon County's request and at no charge or cost to County (i) take the Crack Fill Material back or (ii) exchange the Crack Fill Material. ARTICLE 2 COUNTY'S REPRESENTATIVE 2.1 The Road and Bridge Department designee shall be Vendor's contact with respect to this Agreement. ARTICLE 3 — TERM OF AGREEMENT 3.1 This Agreement shall commence upon execution of this Agreement by both parties, and shall continue in full force and effect until the Crack Fill Material is delivered, accepted by County and title passes to County. Any guarantees or warranties shall survive termination. ARTICLE 4 — COMPENSATION 4.1 For the Crack Fill Material to be provided hereunder, County will pay Vendor the sum of $0.60 per pound. Said sum shall include all delivery fees or charges. The maximum amount of compensation under this Agreement shall not exceed fifteen thousand dollars ($15,000.00) without a signed amendment to the Agreement. 4.2 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. C P) - 9W 4.3 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. The 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. ARTICLE 5— VENDOR'S REPRESENTATIONS/WARRANTIES In order to induce County to enter into this Agreement, Vendor makes the following representations: 5.1 Vendor shall deliver the Crack Fill Material to the County no later than November 30, 2013 5.2 Vendor has familiarized itself with the intended purpose and use of the Crack Fill Material by County and with all local conditions, and federal, state, and local laws, ordinances, rules and regulations that in any manner affect the performance of the Crack Fill Material. 5.3 Vendor will be responsible for provision of the Crack Fill Material to the County in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable similar vendors supplying similar goods. 5.4 In addition to any specific guarantees required by this Agreement and any other documents related to this Agreement, Vendor guarantees and warrants that the Crack Fill Material shall be new and free from defects of any nature for a period of one (1) year from date the Crack Fill Material is delivered and accepted by County, or such longer period as may be provided by law. 5.5 Vendor warrants merchantability and fitness for its intended use and purpose. 5.6 All guarantees and warranties of Crack Fill Material and other materials furnished to Vendor by any manufacturer or supplier are for the benefit of County. If any manufacturer or supplier of any Crack Fill Material or materials furnishes a guarantee or warrantee for a period longer than one (1) year from the date the Recycled Concrete is delivered and accepted by County, Vendor's guarantee shall extend for a like period as to such Crack Fill Material and materials. 5.7 Vendor warrants that title to all Crack Fill Material will pass to County upon inspection and acceptance by County free and clear of all liens, claims, security interests or encumbrances. 5.8 Vendor assumes all risk of loss with respect to the Crack Fill Material until title to the Crack Fill Material passes from Vendor to County, at which time County shall assume all risk of loss with respect to the Crack Fill Material. Title shall pass to County after Vendor has delivered the Crack Fill Material and County has inspected and accepted the Crack Fill Material. 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 Crack Fill Material 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 Vendor in law or in equity. 5.11 Warranties required by this Agreement shall commence on the date of acceptance of the Crack Fill Material by County and shall terminate one (1) year after such date or such longer period as may be agreed between the parties or as may be provided under applicable law. 2 ARTICLE 6 — ENTIRE AGREEMENT 6.1 This Agreement represents the entire Agreement between the parties hereto. The Agreement may only be altered, amended, or repealed in writing. ARTICLE 7 — MISCELLANEOUS 7.1 No assignment by a party hereto of any rights under, or interests in the 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 the Agreement. 7.2 County and Vendor each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, in respect to all covenants, agreements, and obligations contained in this Agreement. 7.3 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 31without 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). 7.4 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. 7.5 This Agreement may amended upon mutual agreement, in writing, signed by both parties. ARTICLE 8 - JURISDICTION AND VENUE: 8.1 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. 8.2 In the event of litigation between the parties hereto regarding the interpretation of this Agreement, or the obligations, duties or rights of the parties hereunder, or if suit -otherwise is brought to recover damages for breach of this Agreement, or an action be brought for injunction or specific performance, then and in such events, the prevailing party shall recover all reasonable costs incurred with regard to such litigation, including reasonable attorney's fees. ARTICLE 9 - INDEMNIFICATION: 9.1 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 or any of its officers, agents, or employees 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 Vendor or any of its subcontractors hereunder; and Vendor shall reimburse County for any and all 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 3 extent that the County is solely liable to such third party for such claims without regard to the involvement of the Vendor. ARTICLE 10 - OWNERSHIP OF DOCUMENTS AND MATERIALS: 10.1 Vendor shall execute any bill of sale or other documents required by County to transfer title to the Equipment to County. Vendor shall provide County with copies of any instruction or operations manuals and shall further provide copies of any manufacturers warranties associated with the Equipment. ARTICLE 11— NOTICE 11.1 Any notice required under this Agreement shall be personally delivered, mailed in the United States mail, first class postage prepaid, or sent via facsimile provided an original is also promptly delivered to the appropriate party at the following addresses: The County: Eagle County Road and Bridge P.O. BOX 250 Eagle, Colorado 81631 (970) 328-3540 (p) (970) 328-3546 (f) and a copy to: Eagle County Attorney P.O. Box 850 Eagle, Colorado 81631 (970) 328-8685 (p) (970) 328-8699 (f) The Vendor: GMCO Corporation 228 Powerline Road PO Box 1480 Rifle, CO 81650 11.2 Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. ARTICLE 12- PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES 12.1 For purposes of this Article 12 the terms Vendor and Contractor shall be used interchangeably. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. § 8-17.5-101, et seq., regarding Illegal Aliens — Public Contracts for Services, and this Contract. By execution of this Contract, Contractor certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract 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 Contract. 12.2 Contractor shall not: (i) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or rd (ii) Enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. 12.3 Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract 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: hqp://www.dhs.gov/xpreyprot/pro rg ams/gc 1185221678150.shtm 12.4 The 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. 12. 5 If the Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Contractor shall be required to: (i) Notify the subcontractor and the County within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; 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 illegal alien; except that the Contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. 12.6 The 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). 12.7 If a Contractor violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, the Contractor shall be liable for actual and consequential damages to the County as required by law. 12.8 The County will notify the office of the Colorado Secretary of State if Contractor violates this provision of this Contract and the County terminates the Contract for such breach. 12.9 The Vendor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) to the extent applicable shall comply with the provisions of C.R.S. 24-76.5-101 et. seq., and (c) has produced one form of identification required by C.R.S. 24-76.5-103 prior to the effective date of this Agreement. ARTICLE 13 — INDEPENDENT CONTRACTOR 13.1 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 Contractor or County and Contractor's employees. Contractor and its employees shall be, and shall perform as, independent contractors. No officer, agent, subcontractor, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of County. Contractor shall be solely and entirely responsible 5 for the means and methods to carry out the Services under this Agreement and for Contractor's acts and for the acts of its officers, agents, employees, and servants during the performance of this agreement. Neither Contractor 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 14 — INSURANCE REQUIREMENTS 14.1 At all times during the term of this Agreement, Contractor shall maintain insurance on its own behalf in the following minimum amounts: 14.1.1 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; 14.1.2 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. 14.1.3 Comprehensive liability and property damage insurance issued to and covering Contractor 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 14.2 Contractor shall purchase and maintain such insurance as required above and the certificate of insurance is attached hereto as Exhibit A. ASIGNATURE PAGE TO FOLLOW// IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, by its County Manager By: VENDOR: By: Title: VENDOR IS REQUIRED TO HAVE ITS SIGNATURE NOTARIZED STATE OF ) ss. COUNTY O '-! LL' ' ) f The foregoing instrument was acknowledged before me by z Vic' , of this%i day o)21 2013. MyXommis ' n expires: 77 otary Public 7 EXHIBIT A INSURANCE CERTIFICATE I:HUB International Insurance Services Ta ificate of insurance for GMCO Corp (1970328 13:46 11/22/13 EST P9 3-3 Clien #: 120981 GMCO2 ACORD-. CERTIFICATE OF LIABILITY INSURANCE °" ° 11/122/221200! 13 3 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: tf 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 holier in lieu of such endorsement(s). PRODUCER Catherine Sommers HUB Intamational Ins Svcs Inc 2742 Crossroads Blvd Grand Junction, CO 81506 888 245-8011- PH o 970-254-3305 N„ 866-908-6374 ADDRESS: catllerine.sommers@hubintsmationai.com ARDING COVERAGE MAIC • INSURER(S) FFO INSURER A: Zurich American Insurance Compa INSURED INSURER 6. American Guarantee and Liabilit GMCO Corp PO Box 1460 INSURER C: Plnnacol Assurance Company 41190 Rifle, CO 81650 INSURER D: I 5 NT rt $300 INSURER E: INSURER F 2 CA License #075777 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 CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMBS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR TYPE OF INSURANCE ALPOLICY INC POLICY NUMBER NM ICY EFF MMIP UTArrS A GENERAL LIABILITY CP03991306 1213112012 1213112013 EACH OCCURRENCE $100,000, X COMMERCIAL GENERALL^ABILTY I 5 NT rt $300 ,000 CLAIMS MADE F—I OCCUR MED EXP (Any ono noon s5 DDD X PD Ded:S 000 PERSONAL. a ADV INJUZl $1,000,000 GENERAL AGGREGATE s2,000,000 CCNi AcastCOATC LIMIICS PCR: PRODUCTS-cowvor-Aw s2,000,000 mxkcy X PRO• LOC $ A A+umMoslLELIABBm CP03991306 2131/2012 12/3112013 $1,000,000 X ANY AUTO BODILY INJURY (Por pomm) s ALL OWNED SCHEDULED AUTOS AUTOS "JURY BODILY IN emlcaM) S (� X HOtECAUTC5 X µj _ PRO= AMAGIE s N0 s B UMBRELLA UAs OCCUR AUC4856791 2131/2012 121311211113 EACH occu Risk= $5,000,000 IX EXCESS LIA9 CLAIMSWADE AGGREGATE s5.000.000 ( OED X1 RETENTION$10 000 $ C WORKERS COMPENSATION 4155502 71Dl2013 07101/201 X Wt: STATu- I jr, AND EMPLOYERS' I IAM TTYY. Y 1 N ANY PROPRIETORIPARTNERIEXECUthE OFF CERIMEMUER EXCLUDED? NIA E L. EACH ACCIDENT $1 oco 000 _.......,._. (IiRtsdslory In NH) E.L. MSEASE - EA EMPLOYEE $1 000 000 It yet daurbe under DESCRIPTION OF OMRA7t bw I E C�SEASE -. POL'CY LIMIT S1 000,000 DESCRIPTION OF OPERATIONS I LOCATIONS 1 VEHICLES (Altaah ACORD 101,. Additional Remarks Sehedule, It mon spaceis reqs Wtd) This section Intentionally left blank Eagle County Road a Bridge Attn: Gordon Adams P.O. Box 250 Eagle, CO 81631 ACORD 25 (2010105) 1 of 1 #325351141M2297692 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTNORUED REPRESENTATIVE 'ice 0 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are regislered marks of ACORD JH02