HomeMy WebLinkAboutC20-204 Preston Bound Journals dba HyFyveFIRST AMENDMENT TO AGREEMENT BETWEEN
EAGLE COUNTY, COLORADO
AND
PRESTON BOUND JOURNALS LIMITED, DBA HYFYVE
THIS FIRST AMENDMENT (“First Amendment”) is effective, nunc pro tunc, as of April 10,
2020 by and between Preston Bound Journals, a Colorado Limited Liability Company d/b/a
HyFyve (hereinafter “Contractor”) and Eagle County, Colorado, a body corporate and politic
(hereinafter “County”).
RECITALS
WHEREAS, County and Consultant entered into an agreement dated April 10, 2020 for certain
Services (the “Original Agreement”); and
WHEREAS, County selected Consultant as a sole-source contractor in accordance with the
Eagle County Guidelines for Purchasing and Contracting (EC Resolution 2014-03); and
WHEREAS, County and Consultant desire by this First Amendment to incorporate the FEMA
Addendum into the Original Agreement.
FIRST AMENDMENT
NOW THEREFORE, in consideration of the foregoing and the mutual rights and obligations as
set forth below, the parties agree as follows:
1. The Original Agreement shall be amended to include the requirement that Contractor
will comply with applicable terms of the FEMA Addendum attached hereto and
incorporated herein by this reference.
2. Capitalized terms in this First Amendment will have the same meaning as in the
Original Agreement. To the extent that the terms and provisions of the First
Amendment conflict with, modify or supplement portions of the Original Agreement,
the terms and provisions contained in this First Amendment shall govern and control
the rights and obligations of the parties.
3. Except as expressly altered, modified and changed in this First Amendment, all terms
and provisions of the Original Agreement shall remain in full force and effect, and are
hereby ratified and confirmed in all respects as of the date hereof.
4. This First Amendment shall be binding on the parties hereto, their heirs, executors,
successors, and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Original
Agreement the day and year first above written.
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C20-204
2
Eagle County Am Scope and Comp Final 5/14
COUNTY OF EAGLE, STATE OF COLORADO,
By and Through Its COUNTY MANAGER
B y: ______________________________
Jeff Shroll, County Manager
CONTRACTOR:
By:________________________________
Print Name: Dennis McMahon
Title: Owner
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FEMA ADDENDUM
OFFICE OF MANAGEMENT AND BUDGET
POST FEDERAL AWARD REQUIREMENTS FOR PROCUREMENT CONTRACTS
This is an addendum to the Agreement between Eagle County, Colorado and Preston
Bound Journals Limited, DBA HYFYVE, a sole source agreement in accordance with
Eagle County Guidelines for Purchasing and Contracting (EC Resolution 2014-03).
This Contract is subject to the provisions of 2 C.F.R. § 200 et seq., Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, as
well as additional requirements promulgated by the Federal Emergency Management Agency
(FEMA). Notwithstanding anything contained in the Contract or this Addendum, Contractor
agrees to comply with all applicable provisions of 2 C.F.R. § 200 et seq., as amended. This
Addendum is hereby expressly incorporated into the Contract between the County and the
Contractor. Regardless of any conflict of provisions language contained in the Contract, to the
extent that the terms of the Contract and this Addendum conflict, the terms of this Addendum
will control.
The applicability of the following contract provisions are described in brackets,
below. As applicable, the following provisions are hereby added and incorporated into the
above-referenced Contract:
Audit Rights
[All contracts]
Eagle County and the Comptroller General of the United States, or any of their duly authorized
representatives, must have access to any books, documents, papers and records of the contractor
which are directly pertinent to a specific program for the purpose of making audits,
examinations, excerpts and transcriptions.
Contracting with small and minority businesses, women’s business enterprises, and labor
surplus area firms (2 C.F.R. § 200.321).
[All contracts]
If subcontracts are to be let, Contractor must take all necessary affirmative steps to assure that
minority businesses, women’s business enterprises, and labor surplus area firms are used when
possible. As set forth in 2 C.F.R. § 200.321(b)(1)-(5), such affirmative steps must include:
1. Placing qualified small and minority businesses and women's business enterprises on
solicitation lists;
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2. Assuring that small and minority businesses, and women's business enterprises are
solicited whenever they are potential sources;
3. Dividing total requirements, when economically feasible, into smaller tasks or quantities
to permit maximum participation by small and minority businesses, and women's
business enterprises;
4. Establishing delivery schedules, where the requirement permits, which encourage
participation by small and minority businesses, and women's business enterprises; and
5. Using the services and assistance, as appropriate, of such organizations as the Small
Business Administration and the Minority Business Development Agency of the
Department of Commerce.
Bonding requirements (2 C.F.R. § 200.325).
[Construction or facility improvement contracts or subcontracts exceeding the Simplified
Acquisition Threshold as defined in 2 C.F.R. § 200.88]
Except where the Federal awarding agency or pass-through entity has made a determination that
alternative bonding policy and requirements adequately protect the Federal interest, Contractor
agrees to comply with the following minimum bonding requirements:
(a) Contractor must provide a bid guarantee equivalent to five percent of the bid
price. The "bid guarantee" must consist of a firm commitment such as a bid bond,
certified check, or other negotiable instrument accompanying a bid as assurance
that the Contractor will, upon acceptance of the bid, execute such contractual
documents as may be required within the time specified.
(b) Contractor must provide a performance bond on the part of the Contractor for 100
percent of the contract price. A "performance bond" is one executed in connection
with a contract to secure fulfillment of all the Contractor's obligations under such
contract.
(c) Contractor must provide a payment bond on the part of the Contractor for 100
percent of the contract price. A "payment bond" is one executed in connection
with a contract to assure payment as required by law of all persons supplying
labor and material in the execution of the work provided for in the contract.
Appendix II: Contract Provisions for non-Federal Entity Contracts Under Federal Awards
(A) [For contracts for more than the simplified acquisition threshold, as defined in 2 C.F.R. §
200.88 and set by the Federal Acquisition Regulation at 48 CFR Subpart 2.1 (Definitions), which
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is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the
Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908]
Note: In accordance with 2 C.F.R. § 200.318(a), Eagle County’s documented
procurement procedures require formal procurement processes for all procurements in
an amount equal to or greater than $15,000.
Breach. Any breach of the Contract by Contractor shall be governed by the Termination and
Related Remedies provision of the Contract. Additionally, in the event that the County incurs
damages as a result of Contractor’s breach, the County may pursue recovery of such damages
from Contractor. The County further retains the right to seek specific performance of the
Contract at any time as authorized by law. The County further retains the right to otherwise
pursue any remedies available to the County as a result of the Contractor’s breach, including but
not limited to administrative, contractual, or legal remedies, as well as any applicable sanctions
and penalties. Termination for cause and convenience are governed by the Termination and
Related Remedies provision of the Contract.
(B) [All contracts in excess of $10,000]
Termination. Termination for cause and convenience are governed by the Termination and
Related Remedies provision of the Contract.
(C) [Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition
of “federally assisted construction contract” in 41 CFR Part 60-1.3]
Equal Employment Opportunity. Contractor agrees to comply with the Equal Opportunity
Clause provided under 41 CFR 60-1.4(a) (Government Contracts) and 41 CFR 60-1.4(b)
(Federal Assisted Construction Contracts), in accordance with Executive Order 11246, “Equal
Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as
amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal
Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal
Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”
Contractor further agrees to include this provision, including the Equal Opportunity Clause or a
reference thereto, in any subcontracts it enters into pursuant to the Contract.
(D) [When required by Federal program legislation, all prime construction contracts in excess of
$2,000 awarded by non-Federal entities]
Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). To the extent it applies, Contractor must
fully comply with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented
by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to
Contracts Covering Federally Financed and Assisted Construction”). In accordance therewith,
Contractor must pay wages to laborers and mechanics at a rate not less than the prevailing wages
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specified in a wage determination made by the Secretary of Labor. In addition, contractors must
be required to pay wages not less than once a week.
Copeland “Anti-Kickback” Act (40 U.S.C. 3145). Contractor must fully comply with the
Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor
regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work
Financed in Whole or in Part by Loans or Grants from the United States”). Pursuant to the Act,
Contractor is prohibited from inducing, by any means, any person employed in the construction,
completion, or repair of public work, to give up any part of the compensation to which he or she
is otherwise entitled. The County shall report all suspected or reported violations of the Copeland
“Anti-Kickback” Act to the Federal awarding agency.
(E) [Where applicable, all contracts awarded by the non-Federal entity in excess of $100,000
that involve the employment of mechanics or laborers]
Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Contractor must
fully comply with the Contract Work Hours and Safety Standard Act (40 U.S.C. 3701-3708),
including 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29
CFR Part 5). Under 40 U.S.C. 3702 of the Act, Contract is required to compute the wages of
every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of
the standard work week is permissible provided that the worker is compensated at a rate of not
less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in
the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and
provide that no laborer or mechanic must be required to work in surroundings or under working
conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the
purchases of supplies or materials or articles ordinarily available on the open market, or contracts
for transportation or transmission of intelligence.
(F) [If the Federal award meets the definition of “funding agreement” under 37 CFR §401.2 (a)]
Rights to Inventions Made Under a Contract or Contract. For contracts entered into by the
Contractor or the County with a small business firm or nonprofit organization regarding the
substitution of parties, assignment or performance of experimental, developmental, or research
work under that “funding agreement,” the parties must comply with the requirements of 37 CFR
Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms
Under Government Grants, Contracts and Cooperative Contracts,” and any implementing
regulations issued by the awarding agency.
(G) [Contracts and subgrants of amounts in excess of $150,000]
Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33
U.S.C. 1251-1387), as amended. All parties agree to comply with all applicable standards,
orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the
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Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). All parties shall report
violations to the Federal awarding agency and the Regional Office of the Environmental
Protection Agency (EPA).
(H) [For contract awards (see 2 CFR 180.220)]
Debarment and Suspension (Executive Orders 12549 and 12689). Contractor attests that it is
not listed on the government-wide exclusions in the System for Award Management (SAM), in
accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3
CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and
Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise
excluded by agencies, as well as parties declared ineligible under statutory or regulatory
authority other than Executive Order 12549.
(I) [For contracts exceeding $100,000]
Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractor attests that it has filed the
required certification under the Byrd Anti-Lobbying Amendment. Contractor attests that it has
certified that it will not and has not used Federal appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any agency, a
member of Congress, officer or employee of Congress, or an employee of a member of Congress
in connection with obtaining any Federal contract, grant or any other award covered by 31
U.S.C. 1352. Contractor further attests that it has disclosed, and will continue to disclose, any
lobbying with non-Federal funds that takes place in connection with obtaining any Federal
award.
(J) [All contracts]
Procurement of recovered materials (2 CFR §200.322). All parties agree to comply with
section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act. The requirements of Section 6002 include procuring only items designated in
guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the
highest percentage of recovered materials practicable, consistent with maintaining a satisfactory
level of competition, where the purchase price of the item exceeds $10,000 or the value of the
quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste
management services in a manner that maximizes energy and resource recovery; and establishing
an affirmative procurement program for procurement of recovered materials identified in the
EPA guidelines.
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ADDITIONAL FEMA REQUIREMENTS
[All contracts]
i. Changes: To be effective, any change to the Contract, including the alteration of any
method, price, or schedule of work must be authorized pursuant to a written amendment
executed by the parties.
ii. Access to Records: Contractor and its successors, transferees, assignees, and
subcontractors acknowledge and agree to comply with applicable provisions governing
Department and FEMA access to records, accounts, information, facilities, and staff.
iii. DHS Deal, Logo, and Flags: Contractor shall not use the Department of Homeland
Security (DHS) seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency
officials without specific FEMA pre-approval.
iv. Compliance with Federal Law, Regulations, and Executive Orders: FEMA financial
assistance will be used to fund the Contract. Contractor shall comply with all applicable Federal
law, regulations, executive orders, and FEMA policies, procedures, and directives.
v. No Obligation by Federal Government: The United States Federal Government is not a
party to the Contract and is not subject to any obligations or liabilities to County, Contractor, or
any other party pertaining to any matter resulting from the contract.
vi. Program Fraud and False or Fraudulent Statements or Related Acts: Contractor
acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and
Statements) applies to Contractor’s actions pertaining to the Contract.
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