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HomeMy WebLinkAboutECAT22-001 DH Pace CompanyAGREEMENT FOR PROCUREMENT AND INSTALLATION, PREVENTATIVE MAINTENANCE, AND ON-CALL SERVICES BETWEEN EAGLE COUNTY AIR TERMINAL CORPORATION AND D.H. PACE COMPANY, INC. THIS AGREEMENT (“Agreement”) is effective as of the _______________________by and between D.H. Pace Company Inc. a Delaware corporation (hereinafter “Contractor”) and Eagle County Air Terminal Corporation, a Colorado non-profit corporation (hereinafter “ECAT”). RECITALS WHEREAS, ECAT desires to engage a contractor to remove and replace terminal garage doors and provide preventative maintenance and on-call services to garage doors at the Eagle County Air Terminal located at 917 Eldon Wilson Road, Gypsum, Colorado (the “Property” or “Properties”); 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 ECAT in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and ECAT agree as follows: 1. Services or Work. Contractor agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete removal and replacement of terminal garage doors and perform the preventative maintenance and on-call services or work at the rates set forth in Exhibit A and in accordance with a formal proposal for each on-call service to be provided by Contractor and approved by ECAT in writing (“Services” or “Work”). Exhibit A 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 in accordance with the schedule established in each proposal approved by ECAT in writing. If no completion date is specified, 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. ECAT’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 31st day of December, 2022. DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 1/11/2022 2 ECAT On-Call Services Final 5/14   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 until Contractor has obtained written authorization and acknowledgement by ECAT for such additional services in accordance with ECAT’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 ECAT 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 ECAT 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. ECAT shall compensate Contractor for the performance of the Services in accordance with the fee schedule set forth in Exhibit A. Prior to commencement of Services at any Property or Properties, Contractor shall first provide ECAT with a written estimate which shall include an estimate of the labor, materials without any markup and any additional costs necessary to perform the Services at a particular Property or Properties. Each estimate must be approved by ECAT’s Representative prior to commencement of the Services by Contractor and all rates shall be in accordance with the fee schedule set forth in Exhibit A. Terminal garage door procurement and installation shall not exceed $56,121.48. Preventative maintenance on terminal garage doors will be performed every 6 months at $880.00 per trip. Total compensation for all Services under this Agreement shall not exceed $100,000.00. 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 ECAT. 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 ECAT may request. b. If, at any time during the term or after termination or expiration of this Agreement, ECAT reasonably determines that any payment made by ECAT 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 ECAT, Contractor shall forthwith return such payment(s) to ECAT. Upon termination or expiration of this Agreement, unexpended funds advanced by ECAT, if any, shall forthwith be returned to ECAT. c. ECAT 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. 6. Subcontractors. Contractor acknowledges that ECAT 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 ECAT’s prior written consent, which may be withheld in ECAT’s sole discretion. ECAT shall have the right in its reasonable discretion to approve all personnel assigned to perform the Services during the performance of this Agreement and no personnel to whom ECAT has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by ECAT 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 ECAT. ECAT shall have the right (but not the obligation) to enforce the provisions of this Agreement against any subcontractor hired by Contractor and Contractor shall DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 3 ECAT On-Call Services Final 5/14   cooperate in such process. The Contractor shall be responsible for the acts and omissions of its agents, employees and subcontractors. 7. Insurance. Contractor agrees to provide and maintain at Contractor’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers’ Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include ECAT, 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 ECAT 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 ECAT 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 ECAT, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. v. Contractor is not entitled to workers’ compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 8. Indemnification. The Contractor shall indemnify and hold harmless ECAT, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which ECAT 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 ECAT for reasonable attorney fees and costs, legal and other expenses incurred by ECAT in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 4 ECAT On-Call Services Final 5/14   apply to claims by third parties against the ECAT to the extent that ECAT is liable to such third party for such claims without regard to the involvement of the Contractor. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents. All documents (including electronic files) and materials obtained during, purchased or prepared in the performance of the Services shall remain the property of the ECAT and are to be delivered to ECAT before final payment is made to Contractor or upon earlier termination of this Agreement. 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. ECAT: Attention: Koltin Howard Talbott 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3573 E-mail:koltin.howardtalbott@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: Chris Gustafson D.H. Pace Ph 303-783-3667 Fax 303-783-3617 Email: Chris.Gustafson@dhpace.com 11. Termination. ECAT 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 ECAT with all documents as defined in paragraph 9 hereof, in such format as ECAT shall direct and shall return all ECAT owned materials and documents. ECAT 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 DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 5 ECAT On-Call Services Final 5/14   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.R.S. 24-71.3-101 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 or Properties, 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 ECAT written notice of all conflicts, errors, or discrepancies. e. Contractor shall be responsible for the completeness and accuracy of the Services and shall correct, at its sole expense, all significant errors and omissions in performance of the Services. The fact that the ECAT 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 ECAT. 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 ECAT and Contractor except that of independent contractor. Contractor shall have no authority to bind ECAT. 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. DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 6 ECAT On-Call Services Final 5/14   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 ECAT. 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. l. 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 ECAT 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.R.S. 24-76.5-103 prior to the effective date of this Agreement. 15. Prohibitions on 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. 8-17.5-101, et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Contractor will participate in the E-verify Program or other Department of Labor and Employment program (“Department Program”) in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Contractor shall not: i. Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E-Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 7 ECAT On-Call Services Final 5/14     https://www.uscis.gov/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 ECAT 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. e. Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Contractor violates these prohibitions, ECAT 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 ECAT as required by law. g. ECAT will notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and ECAT terminates the Agreement for such breach. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. EAGLE COUNTY AIR TERMINAL CORPORATION By: ______________________________ Matt Scherr, President Attest: By: _________________________________ Jeff Shroll, Secretary CONTRACTOR: By:________________________________ Print Name:_________________________ Title: ______________________________ DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 Chris Gustafson Vice President 8 ECAT On-Call Services Final 5/14   EXHIBIT A Fee Schedule DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 20/40P(802DHP) • Rev 11/20 Copyright © DH Pace Company, Inc. 2020 • All Rights Reserved Page 1 of 3 PROPOSAL CUSTOMER: Eagle County Regional Airport PROJECT: Eagle County Airport Terminal Address: PO Box 850 Address 1: City: Eagle State: CO Zip: 81631 Address 2: Phone: 970 471 6279 City: State: Zip: Email: Wallace.oliveira@eaglecounty.us Submitted To: Wallace Oliveira Proposal Date: 9/3/2021 Proposal #: Submitted By: Jim Brownlee Regional Sales Manager 720 581 6360 Jim.brownlee@dhpace.com Addendums Acknowledged: Drawings Dated: Specifications Dated: DH Pace is pleased to provide this proposal to complete the following scope of work: Total Work NTE $100,000.00 A.Perform a Planned Maintenance Program on the following doors on a Biannual Basis; (2)10’x8’ Sectional Overhead Door- Baggage Area (6)4’x4’ Rolling Steel Carousel Doors (3)8’6”x5’ Rolling Steel Doors $880.00 Every 6 Months Replace (6) 4’x4’ Rolling steel Carousel Doors $31,900.00 Replace (3) 8’6”x5’ Rolling Steel Doors $24,221.48 Repair Curtain on Rolling Steel Door $5370.76 B.Respond to all calls within 48 hours Warranty 90 days on equipment, 30 days on labor Rates – $150 hr., $240 hr. overtime, $370 hr. holiday “Costs are currently rising at sudden and unpredictable rates. This proposal is based on current pricing from Sellers suppliers and includes all price increases and surcharges levied by those suppliers and known by Seller as of the date of this proposal. Seller reserves the right to require an approved change order before the order can be released into production to compensate for any supplier price increases or surcharges announced after the date of this Proposal and prior to the release of materials for fabrication. Seller will provide written documentation of the Supplier increase notice upon request. All Buyer Contracts shall include a provision to this affect.” CLARIFICATIONS/EXCLUSIONS: •All opening & structural preparation, including framing and finishes, and field painting by others. •Factory wired operators, controls, to be furnished and set in place by DH Pace. All conduit, raceways, disconnects, electrical boxes, line and low voltage wiring by Electrical and/or Fire Alarm Contractor. •Proposal is subject to mutually agreeable contract terms. •Material and freight costs are anticipated to rise at unpredictable rates over the next several months. This quotation is based on current pricing from our suppliers and includes existing or announced surcharges levied by the steel industry & freight carriers. Customer acknowledges proposals for projects with extended durations may incur additional costs due to costs incurred from unforeseeable future surcharges. With that in mind, we ask that the cost of the work be tethered to the Producer Price Index as published by the department of labor and statistics. More specifically, to the series ID# DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 20/40P(802DHP) • Rev 11/20 Copyright © DH Pace Company, Inc. 2020 • All Rights Reserved Page 2 of 3 WPU101, Metals and metal products; iron and steel (https://data.bls.gov/timeseries/WPU101?data_tool=XGtable). Historically, every four points of rise in this measurement has translated into one percentage point of material cost. •Manufacturer’s standard warranty applies. Warranties beyond mfg’s standard are specifically excluded. Due to the unprecedented situation happening around the world with the COVID-19 virus and the potential for follow-on impacts arising from reactions to the outbreak, it is uncertain as to the impact this event will have on manufacturing and supply lead times, shipping, as well as vendor and contractor services and construction activities moving forward. Accordingly, please understand that our quotation today is conditioned upon an acknowledgement and your agreement that, in the event the COVID-19 virus directly or indirectly delays or impacts our ability to perform, including our ability to obtain requisite materials, equipment, or furnish sufficient labor or supervision, DH PACE shall not be deemed in default and the parties shall agree to negotiate a modification of the contract scope, schedule or method of performance to appropriately address the impacts of such event. We will notify you promptly in the event of such impact and provide our best estimate as to the impact and will continue to update you as the circumstances evolve. Additionally, if awarded this project, DH Pace will require an amendment to any and all contract terms & conditions with the following statement: Neither Party shall be liable or in breach of its obligations under this Agreement to the extent performance of such obligations is delayed or prevented, directly or indirectly, by causes beyond its reasonable control and without its fault or negligence, including acts of God, fire, terrorism, war (declared or undeclared), severe weather conditions, earthquakes, epidemics or pandemics (including but not limited to COVID-19), material shortages, insurrection, acts or omissions of contractor's suppliers or agents, any act or omission by any governmental authority, national epidemics or pandemics (including but not limited to COVID – 19), strikes, labor disputes, acts or threats of vandalism or terrorism (including disruption of technology resources), transportation shortages, or vendor’s failure to perform (each, an “Excusable Delay”). The delivery or performance date shall be extended for a period equal to the time lost by reason of such delay, including time to overcome the effect of the delay. The Party experiencing Excusable Delay shall use reasonable efforts to continue performance whenever such causes are removed. However, in the event an Excusable Delay continues for a period two (2) contiguous months or more, then either party may, upon 30-days written notice to the other, terminate the affected part of this Agreement for convenience. DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 9 ECAT On-Call Services Final 5/14   EXHIBIT B INSURANCE CERTIFICATES DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950 DocuSign Envelope ID: CA1337D7-ABDA-4A8A-A680-3FDDC3399950