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HomeMy WebLinkAboutC17-321 WE-cycleAGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND WE -CYCLE THIS AGREEMENT ("Agreement") is effective as of 09/19/2017___ by and between WE -cycle a Colorado nonprofit corporation (hereinafter "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, Contractor is a nonprofit organization dedicated to operating bike share services in the Roaring Fork Valley and Contractor plans to provide operations staff to balance the system maintaining bike and dock availability, service bikes and stations, provide rider support, provide passes to those who have committed to the Climate Action Plan, purchase and install an additional station for Blue Lake West, and add docking points to the Sopris View station; and WHEREAS, the parties acknowledge and agree that the Services (defined below) promote the health, safety and welfare of the people of Eagle County and are intended to provide services that could otherwise be performed by County directly; and WHEREAS, Contractor has elected to perform the Services on its own and County has, therefore, elected to compensate Contractor to perform the Services for the public to fulfill an important public purpose; and WHEREAS, compensation paid by County to Contractor enables Contractor to perform the Services for the public and County shall have no responsibility for the performance of the Services; and WHEREAS, County desires to enter into this Agreement with Contractor for the performance of the Services to the public which will directly support and sustain a healthy, environmentally and economically vital and socially diverse community; 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 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 and reports or other information required by County in accordance with the schedule established in Exhibit A. If no schedule is specified in Exhibit A, then Contractor agrees to furnish the Services to the public in a timely and expeditious manner consistent with the applicable C 17-321 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 Eagle County Regional Transportation Authority'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 December 31, 2017. County makes no representations concerning the possibility of future Agreements with Contractor and Contractor should not rely on this Agreement being extended or renewed in the future. 4. Modifications. Any amendments or modifications shall be in writing signed by both parties. 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 $55,000. Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours. 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 tasks performed, number of Climate Action Plan passes redeemed and such other detail as County may request. If County is not satisfied with the completeness of a submitted invoice, County may request Contractor either revise the invoice or provide additional information. All invoices must be delivered as follows to ensure proper payment: Eagle County Government c/o Claire Wilson PO Box 850 Eagle, CO 81631 b. If, prior to payment of compensation or reimbursement for Services but after submission to County of a request therefore by Contractor, County reasonably determines that payment as requested would be improper because the Services were not performed as prescribed by the provisions of this Agreement, the County shall have no obligation to make such payment. 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 or purposes for which payment was made were misrepresented, 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. No additional services or work performed by Contractor shall be the basis for additional compensation. 2 Service Award Agreement 8117 d. 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. e. 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 t 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 -tot et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 6. Subcontractors. 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. 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, persona I/ad vert i s ing injury, prod uctslcornpleted 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. hereof. iii. The insurance provisions of this Agreement shall survive expiration or termination iv. 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, Governmental Immunity and No Third Party Beneficiaries. 3 Service Award Agreement 8117 a. 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. b. 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. C. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties and not to any third party. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party any right to claim damages or to bring any suit, action or other proceeding in connection with the Agreement. The parties acknowledge that the Services could otherwise be performed by the County but County has instead determined to provide financial support through compensation as set forth in paragraph 5. Such compensation by County enables Contractor to perform the Services for the public and County shall have no responsibility therefor. Because Contractor is delivering the Services to the public and not Eagle County, the public shall have no rights under this Agreement and may not make any claim against County in connection with this Agreement. 9. Documents. Documents and materials prepared by Contractor during the term of this Agreement shall be provided to County upon request and County shall have the right at no additional cost, to copy, use, re -use, publish, display, the documents and materials and prepare derivative works. 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 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: Chris Lubbers 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3533 E -Mail: christopher.lubbersC@eaglecounty.us CONTRACTOR: WE -cycle Attention: Mirte Mallory, Executive Director Mailing: 4 Service Award Agreement 8117 PO Box 360 Aspen, CO 81612 E -Mail: mirte@we-cycle.org 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. County shall pay Contractor only 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 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.RS. 24-71.3401 to 121. 14. Other Contract Requirements and Contractor Representations. a. 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. 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. Contactor 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. b. 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. C. 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. d. Contractor shall comply with any and all applicable laws, codes, rules and regulations and that is personnel are duly licensed, if required, to perform the Services in Colorado. e. 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. f. 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. 5 Service Award Agreement 8117 g. 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. h. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. i. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services 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. j. 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. 24-76.5403 prior to the effective date of this Agreement. k. Contractor acknowledges that it is prohibited from using Eagle County funds to provide certain public benefits to undocumented individuals pursuant to C.R.S. 24.76.5-101 et. seg. 1. Contractor shall comply at all times and in all respects with all applicable federal, state and local laws, resolutions and codes; and specifically, with the requirements of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act concerning discrimination on the basis of race, color, gender, sex, sexual orientation, age, religion, national origin or disability. in. Contractor shall maintain, for a minimum of three (3) years, adequate financial and programmatic records for reporting to County on the performance of its responsibilities hereunder. Contractor shall be subject to financial audit by county auditors or their designees. Contractor authorizes County to perform audits or to make inspections during normal business hours, upon 48 hours' notice to Contractor for the purpose of evaluation its performance under this Agreement. Contractor shall cooperate fully with County. n. The recitals set forth above are incorporated herein by reference. 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.RS. 8-17.5-101, et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.RS. 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 6 Service Award Agreement 8117 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: https://www.uscis.aov/e-verify 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-t7.5-102(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. 7 Service Award Agreement 8117 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. Attest A"i""i- ......... By: -------- -- Regina O'Brien, Clerk to the Board COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: Jillian H. Ryan, Chair CO By:--__,__<---- Mirte Mallory Executive Director 8 Service Award Agreement 8117 SCOPE OF SERVICES, SCHEDULE, FEES, REPORTING REQUIREMENTS 1. SCOPE OF SERVICES a. CONTRACTOR SHALL PERFORM OR PROVIDE THE FOLLOWING SERVICES OR PROGRAMS TO THE PUBLIC: 1. Provide operations staff to balance the bike transit system by maintaining bike and dock availability 2. Service bikes and stations 3. Provide rider support 4. Provide passes to those who have committed to the Climate Action Plan 5. Purchase and install an additional station for Blue Lake West 6. Add docking points to the Sopris View station b. CONTRACTOR SHALL COMPLY WITH THE FOLLOWING SCHEDULE OR MILESTONES IN PERFORMANCE OF THE SERVICES: Contractor will begin implementation immediately upon execution of this Agreement. Contractor will complete the project on or before October 1, 2017. c. FEES Contractor will be paid in aggregate lump sum not to exceed $55,000.00 upon receipt of an invoice outlining the Services performed. d. CONTRACTOR SHALL BE REQUIRED TO SUBMIT THE FOLLOWING REPORTS TO COUNTY: Contractor shall submit a report to the County prior to final payment under this Agreement. The report shall contain representation of additional station and docking points. The report shall demonstrate to County that the services outlined in the scope of work were provided satisfactorily in accordance with the terms of this Agreement. 9 Service Award Agreement 8117 f'► R �r CERTIFICATE OF LIABILITY INSURANCE DATE (MM!DD,'YYYY) CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE HOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER. AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED. the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such end orsemerit (s). PRODUCER Phone: (952)944-2929 CONTACT NAME: Megan Nelson Fax: (952)944-3091 Horizon Agency, Inc. PHONE FA (952)95fi-3359 (952)914-7144 Arc Na �RESS: megan r0 orizonagency.com 6500 City West Pkwy #100 NSU RER S AFFORDING COVERAGE NAIL p Filen Prairie, Minnesota 55344 EACH OCCURRENCE $ 1,000,000 INSURER A: Cincinnati Specialty Undo -writers Insurance Company 13037 INSURED INSURER B : Hartford Accident And Indemnity Company 22357 WE -cycle INSURER C: Trumbull Insurance Company 27120 PO Box 360 Aspen, CO 81612 INSURER D INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 7443 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. !NSR LTR TYPE OF INSURANCE POUCYNUMBER POLICY EFF INWDDNYYYI POLICYADDLSUBR (MINDD/YYYYILIMITS COMMERCIAL GENERAL LIABILITY CS00084585 5/21/2017 5/21/2018 EACH OCCURRENCE $ 1,000,000 A CLAMS -MADE � OCCUR PREMISES Eaoceurrenoe S 100,000 MED EXP (Any one person) S PERSONAL&ADV INJURY S 1,000,000 GEN'L AGG R EGAT E LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY 1 PRD JEOT F-1LOC PRODUCTS - COM PIOPAGG $ 2,000,000 $ OTHER: B AUTOMOBILE LIABILITY 41UECZ60094 5/21/2017 5/21/2018 COM BIN E0SING LELIMIT $ 1,000,000 Ea accident BODILY INJURY (Per person) S >/ ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) S PROPERTY DAMAGE S Per a..dwt HIRED NOWOVMIED AUTOS ONLY AUTOS ONLY S UMBRELLALIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAMSMADE DED I I R ETENTION $ S C, WORKERS COMPENSATIONPER AND EMPLOYERS' LIABILITY YIN ANYPROPRIETORIPARTNERlEXECUTIVEEl. 41WECBY9218 5/21/2017 5/21/2018 OTH- STATUTE ER EACH ACCIDENT $ 500,000 OF FIC ER)U EM BER EXC LU DED 7 ❑ {Mandatary in NH) N f i4 E.L. DISEASE- EA EMPLOYEE $ 500,000 a yes, describe under DESCRIPTK)N OF OPE RATIONS below E.L. DISEASE - PDLICY LIMIT $ 500,000 7 DESCRIPTION DF OPERATIONS I LOCATIONS I VEHICLES (ACO RD 141, Additional Renwks Schedule, may be attached if more space is requiredl Additional Insured (appli8s to general liability and auto liability only): Eag18 County, SCAT, ECHDA, etc., its associated or affiliated entities, its successors and assigns, elected officials, employees, agents, volunteers With regards to the named insured's operations. CERTIFICATE HOLDER CANCELLATION Holder's Nature of Interest : Certificate Holder Eagle County, ECAT, ECHDA, etc. 500 Broadway Eagle, CO 81631-0850 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHO RIZE D R EPR ESENTATI VE ap._7_v i-', © 1988-2015 ACO RD CO R PO RATION. All rights reserved. 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