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HomeMy WebLinkAboutC17-095 Digital FXAGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND DIGITAL FX, INC. THIS AGREEMENT ("Agreement") is effective as of 03/22/2017 by and between Digital FX, Inc. a Colorado corporation (hereinafter "Contractor" or "Photographer") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, County desires to hire Contractor to provide photography services at the Eagle County Regional Airport (EGE) (the "Project"), located at 219 Eldon Wilson Road, Gypsum, Colorado, S 1637 (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. K- 0111 a0LVA 1O►t10 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 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. a. Contractor agrees to furnish the Services no later than December 31, 2017 and in accordance with the schedule established in Exhibit A. 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. 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 Airport 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 of paragraph 11 hereof, shall continue in full force and effect through the 31" day of December, 2017. 4. Extension or Modification. This Agreement may be extended for up to three additional one year terms upon written agreement of the parties. 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 C17-095 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 $20,000.00. 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). b. 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. 2 Eagle County General Services Final 5/14 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. Workers' Compensation insurance as required by law. ii. Auto coverage. The Services do not require the operation of a motor vehicle. Notwithstanding the foregoing, should Contractor or any of its employees drive their personal vehicles in connection with the performance of the Services under this Agreement, such individual shall maintain auto insurance as required by law and shall be solely responsible for any injury or damage arising out of use and operation of such personal vehicle. 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 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 F.xhihit R 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 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. 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 3 Eagle County General Services Final 5/14 claims without regard to the involvement of the Contractor. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents and Copyright Assignment. All images, documents (including electronic files) and materials obtained during, purchased or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. Contractor hereby irrevocably assigns and transfers to County all interest, title, copyright or intellectual property rights in the images associated with the Project. 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 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: Assistant Aviation Director 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-2649 Facsimile: 970-328-2687 E -Mail: andy.solsvig@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E -Mail: atty@eaglecounty.us CONTRACTOR: Digital FX, Inc. Attn: Brent Bingham PO Box 1685 951 Winslow Rd Edwards, CO 81632 bbinghamphoto @ gmail.corn 970-376-0001 11. 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 4 Eagle County General Services Final 5/14 as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials, images 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. B. 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. 24-71.34{]1 to 121. 14. 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. d. To the extent possible, Contractor has given County written notice of all conflicts, errors, or discrepancies. C. 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. 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 5 Eagle County General Services Final 5/14 between County and Contractor except that of independent 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. i. 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. 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 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. 1. 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. M. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any 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, 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.RS. 24-76.5-t03 prior to the effective date of this Agreement. 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. 5-17.5-101, et, seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.RS. 5-17.5-101, 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: 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. 6 Eagle County General Services Final 5/14 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/> c 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 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. C. 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] 7 Eagle County General Services Final 5/14 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: Bryan R. Treu, Interim County Manager CONTRACTOR: d...aas./.ae Print Name: Brent Bingham Title: Photographer 8 Eagle County Gcneral Services Final 5114 EXHIBIT A SCOPE OF SERVICES. SCHEDULE, FEES Digital FX, Inc. Brent Bingham Photography Scope of Work: Eagle County Regional Airport 1. Contractor agrees to provide DVD(s) of photographic images delivered by december 31, 2017. 2. Contractor agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. 3. Contractor represents that it has the expertise and personnel necessary to properly and timely perform the Services. 4. Contractor will provide "release" forms for all images containing individuals. a. Photographer shall be solely responsible for obtaining and maintaining signed releases from individuals being photographed so that Photographer and County may use any of the images set forth in the Agreement. b. By delivering the images to the County, Photographer represents and warrants to County that it holds all rights to and has obtained the necessary releases for each image. 5. Contractor shall provide and install all cameras, lighting and other materials and equipment necessary to complete the Services. Ownership and Use of Images: 1. Purchase of Photography for previously shot images will cost $250 per photo and are non- exclusive. 2. County will maintain full rights, ownership and use of images produced by Photographer forthe Project. County may use or reproduce the images for any purpose and may alter, crop, manipulate and create derivative works from the images. Shot List 2017 • Internal Terminal o General interior o dining images 0 Shopping images o Hold room —general and during busy times • Exte rio r te rmi na I o Exterior with elevation sign and flags — including some night shots o Airside o Tower ■ Tower with background views 9 Eagle County G neral SetNices Final 5/14 ■ Internal ■ Views from tower • Action Shots o Fuelertruck pumping fuel o Inside cargo bin o Rampers o TSA o ARFF o Admin staff o Curbside o Baggage ha ndele rs wl carts o Airline counter workers o Passengers boarding / deplaning • Individual airline aircraft and group aircraft • Early morning or late evening • General Aviation aircraft • Hangarimages • VVJC hangars • Northside hangars and amenities • HAATS • Snow Removal Equipment (SRE) Building and Equipment ]0 Eagle County G neral SetNices Final 5/14 EX-IIBIT B INSURANCE CERTIFICATE 11 Eagle County Gcneral Services Final 5114 CERTIFICATE OF INSURANCE - COMMERCIAL ALLSTATE INSURANCE COMPANY -NORTH BROOK IL THIS CERTIR GATE IS ISSUED ASA MATTER OF IN FORMAT ON ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOTAMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Description of Operation. ADDITIONAL INSURED: EAGLE COUNTY ITS ASSOCIATED OR AFFILIATED ENTITIES, ITS SUCCESSORS AND ASSIGNS, ELECTED OFFICIALS, EMPLOYEES, AGENT AND VOLUNTEERS. CERTIFICATE HOLDER NAMED INSURED Name and Address of Party to Whom this Certificate is Issued Name and Address of Insured EAGLE COUNTY ?O Box 850 EAGLE, Co 81631-0850 DIGITAL Fx, INC. no Box 1685 EDWARDS, Co 81632-1685 Location Address (if different than above) This is to certify that policies of insurance listed he low have been issued to the insured named above subjectto the expiration date indicated he low, notwithstanding any requremert, term or cond it ion ofany contractor other docuneInt with respect to which this cart ificato may he issued or may pertain. The insurance afforded by the policies described herein is subject to all the torms, exclusions, and conditions of such policies. TYPE OF INSURANCE AND LIMITS Policy Number: 648779180 Effective Date: 01-25-2017 Expiration Date: 01-25-201$ COVERAGE SUMMARY BUSINESS LIABILITY AMOUNT COMPREHENSIVE LIABILITY $ 1,000,000 Per Occurrence DAMAGETO PREMISES RENTEDTOYOU $ 50, 000.00 Any One Premises MEDICAL PAYMENTS $ 10, 000 Per Person OTHER THAN PRODUCTS I COMPLETED OPERATI ON S AGGREGATE $ 2, 000, 000.00 PRODUCTS/ COMPLETED OPERATION AGGREGATE $ 2, 000, 000.00 PROPERTY INSURANCE POLICY TYPE 0 SPECIAL FORM F--] BROAD FORM F--] BASIC FORM BUILDERS RISK SPECIAL FORM BUILDING F-] Replacement Cost F--] Actual Cash Value E] Blanket Limit 0 CONTENTS S 20, 000 0 Replacement Cost F] Actual Cash Value Blanket Limit Deductible S 500 Wind Deductible % 0 Exclude Wind 11 YES flO ADDITIONAL COVERAGE'S: EQUI?NENT BREAKDOWN,MISCELLANEOUS PROFESSIONAL LIABILITY,ADDITIONAL INSURED MORTGAGE CLAUSE -The policy contains a Mortgage Clause in favor of: Mortgagee Add ress CERTIFICATE PERIOD THIS CERTIFICATE WILL REMAIN IN FORCE FROM THE INCEPTION OF THE POLICY UNTIL THE POLICY IS CANCELLED OR EXPIRES. POLICY INCEPTION DATE: 01-25-2017 ® 12:01 AM ❑ 12:00 NOON Standard Ti me at the location of the Insured Premises. PROVISIONS This form is not the contract of insurance, but attests that a policy as identified above has been issued. The provisions of the policy shall prevail in all respects. SH OU LD THE ABOVE DE SCRI BE D P OL I CY BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. HOWARD SUR WLZ 02-13-17 Authorized Representative Date Cl CW 01 01 14 Insured Full Copy P OL ICY N UMBER: 6 4 B 7 7 91 B O BUSI N ESSOWN ERS BP 04 48 0713 IN: 1614z►IBIG] :M4TJl4'►kio]:1_1'►C *29:1:10611I M' I*-M:l0 V 131967_1I'll 4all 4wig ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: BUSIINESSOWNERS COVERAGE FORM SCHEDULE I Name Of Additional Insured Person(s) Or Orcianization(s): EAGLE COUNTY,ITS ASSOCIATED OR AFFILIATED ENTITIES,ITS SUCCESSORS AND ASSIGNS,ELECTED OFFICIALS, EMPLOYEES, AGENTS AND VOLUNTEERS I Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II —Liability is amended as follows: A. The following is added to Paragraph C. Who Is An Insured: 3. Any person(s) or organization(s) shown in the Schedule is also an additional insured, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf in the performance of your ongoing operations or in connection with your premises owned by or rented to you. However: a The insurance afforded to such additional insured only applies to the extent permitted by law; and b. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. BP 04 48 07 13 B. With respect to the insurance afforded to these additional insureds, the following is added to Paragraph D. Liability And Medical Expenses Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2 Available under the applicable Limits Of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits Of Insurance shown in the Declarations. © Insurance Services Office, Inc., 2012 Iruured Full Copy Page 1 of 1