No preview available
HomeMy WebLinkAboutC22-111 Strategic Fence & Wall CoAGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND STRATEGIC FENCE & WALL CO. THIS AGREEMENT (“Agreement”) is effective as of ____________________ by and between Strategic Fence & Wall Co., a Colorado corporation (hereinafter “Contractor”), and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, County desires to hire Contractor for on-call fencing installation and repairs, netting and other services as requested at County owned facilities; 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 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 County 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 County. 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. County shall have the right to inspect all Work and Materials prior to acceptance. Inspection and acceptance shall not be unreasonably delayed or refused. In the event County DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 3/17/2022 does not accept the Materials for any reason in its sole discretion, then Contractor shall upon County’s request and at no charge or cost to County i) take the Materials back, ii) exchange, or iii) repair the Materials. c. 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 Facilities Management 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 on the 10th day of May, 2022, and subject to the provisions of paragraph 11 hereof, shall continue in full force and effect for a period of one year. 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 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 accordance with the fee schedule set forth in paragraph 1 hereof. Prior to commencement of additional repairs or Services, Contractor shall first provide County with a written estimate which shall include an estimate of the labor, materials without any mark up and any additional costs necessary to perform the Services. Each estimate must be approved by County’s Representative prior to commencement of the Services by Contractor and all rates shall be in accordance with the fee schedule set forth in paragraph 1 hereof. The performance of the Services under this Agreement shall not exceed one hundred thousand dollars ($100,000). 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. DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 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). 6. 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 perform the Services 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. DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 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 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. 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. v. Contractor is not entitled to workers’ compensation benefits except as DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 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 monies 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 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 County and are to be delivered to County 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. COUNTY: Eagle County, Colorado Attention: Ron Siebert Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8881 Facsimile: 970-328-8782 E-Mail: ron.siebert@eaglecounty.us With a copy to: Eagle County Attorney DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E-Mail: atty@eaglecounty.us CONTRACTOR: Strategic Fence & Wall CO P.O. Box 9376 1905A Airport Road Breckenridge, CO 80424 Telephone: 970-547-9292 Facsimile: 970-547-9039 E-Mail: info@strategicfence.com 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 as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials 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, interpreted under, and 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. DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 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 it 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. 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 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 warrants merchantability and fitness of the Materials for its intended use and purpose. g. Contractor hereby represents and warrants that the Materials will be new and guarantees all Materials against defects for a period of one (1) year from the date the Materials are accepted by County, or such longer period as may be provided by the law or as otherwise agreed to by the parties. h. All guarantees and warranties of Materials furnished to Contractor by any manufacturer or supplier are for the benefit of County. If any manufacturer or supplier of any Material furnishes a guarantee or warrantee for a period longer than one (1) year, then Contractor’s guarantee or warrantee shall extend for a like period as to such Materials. DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 i. Contractor warrants that title to all Materials shall pass to County either by incorporation into the County facility or upon receipt by Contractor of payment from County (whichever occurs first) free and clear of all liens, claims, security interests or encumbrances. Contractor further warrants that Contractor (or any other person performing Work) purchased all Materials free and clear of all liens, claims, security interests or encumbrances. Notwithstanding the foregoing, Contractor assumes all risk of loss with respect to the Materials until County has inspected and approved the same. j. Within a reasonable time after receipt of written notice, Contractor shall correct at its own expense, without cost to County, and without interruption to County: i. Any defects in Materials which existed prior to or during the period of any guarantee or warranty provided in this Agreement; and ii. Any damage to any property caused by such defects or the repairing of such defects. k. Guarantees and warranties shall not be construed to modify or limit any rights or actions County may otherwise have against Contractor in law or in equity. l. 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. m. 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 between County and Contractor except that of independent contractor. Contractor shall have no authority to bind County. n. 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. o. 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. DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 p. 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. q. 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. r. 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. s. The invalidity, illegality, or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. t. 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. u. 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 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. 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. DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 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: 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 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. 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, 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. DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 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] DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 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: ______________________________ Jeff Shroll, County Manager CONTRACTOR: STRATEGIC FENCE & WALL CO. By:________________________________ Print Name: _________________________ Title: ______________________________ DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 Hugh Fairfield-Smith President EXHIBIT A SCOPE DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 Note: The 50% mark up for the wholesale price is for materials that are only purchased from Strategic Fence & Wall Company. This mark up includes pick up and/or delivery from Denver. If Strategic Fence & Wall Company installs the material, the mark up is 10%. EXHIBIT A DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 EXHIBIT B INSURANCE CERTIFICATE DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 EXHIBITBDocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9 DocuSign Envelope ID: 984C93B2-FBFD-4883-AA21-889081940EE9