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HomeMy WebLinkAboutC23-168 Andre SilvaAGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND ANDRE SILVA THIS AGREEMENT (“Agreement”) is effective as of __________________ by and between Andre Silva, a sole proprietors (hereinafter “Contractor” or “Photographer”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, the County desires to hire a Contractor to provide photography services for the 2023 Eagle County Fair and Rodeo (the “Project”) to be held at the Eagle County Fairgrounds, located at 426 Fairgrounds Road, Eagle, Colorado 81631 (the “Property”); and WHEREAS, Contractor is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Contractor and County in connection with the Services. 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 photograph the 2023 Eagle County Fair and Rodeo. Contractor shall be responsible for photographing the contestants, entertainment and animals during the four-day Fair and Rodeo to be held on July 26, 27, 28, and 29, 2023. Photographer shall deliver to the County in DVD format or flash drive, all images taken at the 2023 Fair and Rodeo no later than August 31, 2023. Contractor agrees to furnish the Services no later than July 26, July 27, July 28, and July 29, 2023, during the 2023 Eagle County Fair and Rodeo with a DVD of the photographic images delivered to County by August 31, 2023. 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. Nothing in this Agreement shall preclude County from entering into agreements for similar services with other photographers for the same events during the term hereof. The parties agree that rodeo contestants sign their image rights over to Photographer and PRCA when entering the rodeo and obtaining their PRCA card. For all images taken of non-rodeo contestants, Photographer shall be solely responsible for obtaining and maintaining signed releases from individuals being photographed when appropriate and to the extent that it is reasonably practicable, so that Photographer and County may use any of the images as set forth in this Agreement. By delivering the images to County, Photographer represents and warrants to County that it holds all rights to and has obtained the necessary releases for each image. 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. DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692 5/17/2023 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 until the Services are satisfactorily completed in accordance with the terms of this Agreement. 4. Extension or Modification. This Agreement may not be amended or supplemented, nor may any obligations hereunder be waived, except by a written agreement 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 acknowledgment 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. The performance of the Services under this Agreement shall not exceed $2,600. 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 the County. a. County will additionally provide Contractor with one (1) hotel room of County’s choice for use by Contractor from July 26, 2023, through July 29, 2023. Check-in/check-out times and use of the rooms will be subject to the hotel’s policies and procedures. b. 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. c. 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. 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 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 DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692 the performance of any of the Services or additional services without the County’s prior written consent, which may be withheld in County’s sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to the subject Project during the performance of this Agreement and no person to whom the 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 a 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. The Services do not require the operation of a motor vehicle. Notwithstanding the foregoing, should Contractor or any of its employees drive their personal vehicles in connection with the performance of the Services under this Agreement, such individual shall maintain auto insurance as required by law and shall be solely responsible for any injury or damage arising out of use and operation of such personal vehicle. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit A. 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 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. DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692 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 and Use of Images. Photographer shall retain all title, copyright or intellectual property rights in the images and has the right to sell any and all photos without obtaining a release from County. Upon delivery of the images to County, Photographer hereby grants to County an irrevocable perpetual license for County to use the images from the 2023 Eagle County Fair and Rodeo. Use of images by County is subject to the following: County shall give credit to “Andre Silva” when the images are used by County. County may use or reproduce the images for any purposes, including but not limited to, placement on the County website and in County brochures or other marketing or advertising materials. County may alter, crop, manipulate and create derivative works from the images without the prior approval of Photographer. 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: Tanya Dahlseid 794 Fairgrounds Road Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8892 E-Mail: tanya.dahlseid@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 E-Mail: atty@eaglecounty.us CONTRACTOR: DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692 Andre Silva Post Office Box 550 Bridgeport, TX 76426 Telephone: 903-651-1781 E-Mail: andre@andresilva.com.br 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 photographic images in DVD format. 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 the 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 the 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, and with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or performance of the Services. b. Contractor will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of the Services. c. To the extent possible, Contractor has correlated the results of such observations, examinations, investigations, tests, reports, and data with the terms and conditions of this Agreement. d. To the extent possible, Contractor has given County written notice of all conflicts, errors, or discrepancies. 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 the 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. DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692 f. Contractor agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. g. This Agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between County and Contractor except that of independent contractor. Contractor shall have no authority to bind County. h. Contractor represents and warrants that at all times in the performance of the Services, Contractor shall comply with any and all applicable laws, codes, rules and regulations. i. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. j. Contractor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. k. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. 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 County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. The Contractor has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Contractor shall not employ any person having such known interests. o. The Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. [REST OF PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692 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 Andre Silva By:________________________________ Print Name: _________________________ Title: ______________________________ DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692 Photographer Andre Silva ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 05/10/2023 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES 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 endorsement(s). PRODUCER CONTACT NAME:MM – Concessionaires, Exhibitors & Vendors K&K Insurance Group, Inc. 1712 Magnavox Way Fort Wayne IN 46804 PHONE (A/C, No, Ext):1-800-328-2317 FAX (A/C, No):1-260-459-5502 E-MAIL ADDRESS:info@eventinsurance-kk.com PRODUCER CUSTOMER ID: INSURER(S) AFFORDING COVERAGE NAIC # INSURED INSURER A:Markel Insurance Company 38970 Andre Silva PO Box 550 Bridgeport, TX 76426 A Member of the Sports, Leisure & Entertainment RPG INSURER B: INSURER C: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: W02449595 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. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY)LIMITS A X COMMERCIAL GENERAL LIABILITY X M1RPG0000000131000 07/26/2023 12:01 AM EDT 07/31/2023 12:01 AM EACH OCCURRENCE $1,000,000 CLAIMS- MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea Occurrence)$300,000 MED EXP (Any one person)$5,000 PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE $5,000,000 GEN’L AGGREGATE LIMIT APPLIES PER:PRODUCTS – COMP/OP AGG $1,000,000 POLICY PRO- JECT LOC PROFESSIONAL LIABILITY OTHER: BODILY INJURY TO PARTICIPANTS AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) ANY AUTO BODILY INJURY (Per person) OWNED AUTOS ONLY SCHEDULED AUTOS BODILY INJURY (Per accident) HIRED AUTOS ONLY NON-OWNED AUTOS ONLY PROPERTY DAMAGE (Per accident) NOT PROVIDED WHILE IN HAWAII UMBRELLA LIAB OCCUR EACH OCCURRENCE EXCESS LIAB CLAIMS-MADE AGGREGATE DED RETENTION WORKERS COMPENSATION AND EMPLOYERS’ LIABILITY ANY PROPRIETOR/PARTNER/ EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/A PER STATUTE OTHER Y / N E.L. EACH ACCIDENT E.L. DISEASE – EA EMPLOYEE E.L. DISEASE – POLICY LIMIT MEDICAL PAYMENTS FOR PARTICIPANTS PRIMARY MEDICAL EXCESS MEDICAL DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Booth Operations of the Named Insured; # of Trailers: 1 Event Name: Eagle County Fair and Rodeo; Event Date: 07/26/2023 to 07/30/2023 The certificate holder is added as an additional insured, but only for liability caused, in whole or in part, by the acts or omissions of the named insured. CERTIFICATE HOLDER CANCELLATION Eagle County PO Box 850 Eagle, CO 81631 (Event Organizer) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Coverage is only extended to U.S. events and activities. ** NOTICE TO TEXAS INSUREDS: The Insurer for the purchasing group may not be subject to all the insurance laws and regulations of the State of Texas DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692 CG 20 26 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 1 c POLICY NUMBER: M1RPG0000000131000 COMMERCIAL GENERAL LIABILITY CG 20 26 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED – DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Eagle County PO Box 850 Eagle, CO 81631 Named Insured:Andre Silva Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A.Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1.In the performance of your ongoing operations; or 2.In connection with your premises owned by or rented to you. However: 1.The insurance afforded to such additional insured only applies to the extent permitted by law; and 2.If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B.With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1.Required by the contract or agreement; or 2.Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. DocuSign Envelope ID: 300E963F-4A52-457E-BCEE-699512881692