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HomeMy WebLinkAboutLC19-008 360 Civil, IncAGREEMENT FOR PROCUREMENT AND INSTALLATION SERVICES BETWEEN LAKE CREEK VILLAGE LLC AND 360 CIVIL, INC. THIS AGREEMENT (“Agreement”) is effective as of ________________________ by and between 360 Civil, Inc., a Colorado corporation (hereinafter “Contractor”) and Lake Creek Village LLC, a Colorado limited liability company (hereinafter “LCV”). RECITALS WHEREAS, LCV desires to hire Contractor to rebuild the removed bike path outside of the 100-year flood plain per HUD requirement ensuring no area passes through the floodplain (the “Project”) located at the Lake Creek Village Apartment complex at 4923 Lake Creek Village Drive, Edwards, CO 81632 (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 equipment, materials and installation services as set forth below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Contractor and LCV in connection with the procurement of equipment, materials and services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and LCV agree as follows: 1. Services or Work. Contractor agrees to procure the materials, equipment and/or products (“Equipment”) necessary for the Project and agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the procurement and installation services described in Exhibit A (“Services” or “Work”) which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Contractor agrees to furnish the Services no later than June 30, 2019, and in accordance with the schedule established in Exhibit A. If no completion date is specified in Exhibit A, 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. c. LCV shall have the right to inspect all Equipment. Inspection and acceptance shall not be unreasonably delayed or refused. In the event LCV does not accept the Equipment for any reason in its sole discretion, then Contractor shall upon LCV’s request and at no charge to LCV: i. take the Equipment back; ii. exchange the Equipment; or DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 5/21/2019 2 LCV Procurement and Installation Final 5/14 iii. repair the Equipment. 2. LCV’s Representative. The Maintenance Supervisor, William Wright, the Housing 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 30th day of June 2019. 4. Extension or Modification. 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 LCV for such additional services in accordance with LCV’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 LCV 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 LCV 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. LCV shall compensate Contractor for the Equipment and performance of the Services in a sum computed and payable as set forth in Exhibit A. The Equipment and performance of the Services under this Agreement shall not exceed $27,192.00. 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 LCV. a. Payment will be made for Equipment and 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 LCV may request. b. If, at any time during the term or after termination or expiration of this Agreement, LCV reasonably determines that any payment made by LCV to Contractor was improper because the Equipment or Services for which payment was made were not provided or performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from LCV, Contractor shall forthwith return such payment(s) to LCV. Upon termination or expiration of this Agreement, unexpended funds advanced by LCV, if any, shall forthwith be returned to LCV. c. LCV 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 LCV 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 LCV’s prior written consent, which may be withheld in LCV’s sole discretion. LCV 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 personnel to whom LCV has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by LCV 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 LCV. LCV 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: E913AB81-2A49-4F04-9DE3-812AE327A3D9 3 LCV Procurement and Installation 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 LCV, 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 LCV 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 LCV 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 LCV, 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 LCV, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which LCV 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 LCV for reasonable attorney fees and costs, legal and other expenses incurred by LCV in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 4 LCV Procurement and Installation Final 5/14 claims by third parties against LCV to the extent that LCV 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 LCV and are to be delivered to LCV before final payment is made to Contractor or upon earlier termination of this Agreement. Further, Contractor shall execute any bill of sale or other documents required by LCV to transfer title of the Equipment to LCV. Contractor shall provide copies of any instruction or operations or care manuals and shall further provide copies of any manufacturers warranties associated with the Equipment. 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. LCV: Attention: Kim Williams 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8773 Facsimile: 970-328-8787 E-mail: kim.williams@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: 360 Civil, Inc. Attn: Patrick Bourke PO Box 2247 Gypsum, CO 81637 Telephone: 970-445-1041 Cellular: 970-471-8784 E-mail: Patrick@360civil.com 11. Termination. LCV 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 LCV with all documents as defined in paragraph 9 hereof, in such format as LCV shall direct and shall return all LCV owned materials and documents. LCV shall pay Contractor for Services satisfactorily performed to the date of termination. DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 5 LCV Procurement and Installation Final 5/14 12. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 13. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 14. Other Contract Requirements and Contractor Representations. a. Contractor has familiarized itself with the intended purpose and use of the Equipment, 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 LCV written notice of all conflicts, errors, or discrepancies. e. Contractor shall be responsible for 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 LCV has accepted or approved the Equipment and/or 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 will survive termination of this Agreement. f. Contractor hereby represents and warrants that the Equipment will be new and will perform the Services in a good and workmanlike manner and guarantees all Work against defects in materials or workmanship for a period of one (1) year from the date the Work is accepted by LCV, or such longer period as may be provided by the law or as otherwise agreed to by the parties. g. All guarantees and warranties of Equipment furnished to Contractor or any subcontractor by any manufacturer or supplier are for the benefit of LCV. If any manufacturer or supplier of any Equipment 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 Equipment. DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 6 LCV Procurement and Installation Final 5/14 h. Contractor warrants that title to all Work and Equipment shall pass to LCV either by incorporation into the Property or upon receipt by Contractor of payment from LCV (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 Equipment free and clear of all liens, claims, security interests or encumbrances. Notwithstanding the foregoing, Contractor assumes all risk of loss with respect to the Equipment until the Equipment is installed and LCV has inspected and approved the same. i. Within a reasonable time after receipt of written notice, Contractor shall correct at its own expense, without cost to LCV, and without interruption to LCV: i. Any defects in materials or workmanship which existed prior to or during the period of any guarantee or warranty provided in this Agreement; and ii. Any damage to any other Work or property caused by such defects or the repairing of such defects. j. Guarantees and warranties shall not be construed to modify or limit any rights or actions LCV may otherwise have against Contractor in law or in equity. k. 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. l. This Agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of LCV. 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 LCV and Contractor except that of independent contractor. Contractor shall have no authority to bind LCV. m. 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. n. 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. o. Contractor shall not assign any portion of this Agreement without the prior written consent of the LCV. Any attempt to assign this Agreement without such consent shall be void. p. 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. q. 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. r. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. s. The signatories to this Agreement aver to their knowledge, no employee of LCV has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. The Contractor has no DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 7 LCV Procurement and Installation Final 5/14 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. t. 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. a. As used in this Section 15, the term undocumented individual will refer to those individuals from foreign countries not legally in 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 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 contract for services. b. If Contractor obtains actual knowledge that a subcontractor performing work under the contract for services knowingly employs or contracts with an undocumented individual, Contractor shall be required to: i. Notify the subcontractor and LCV 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 (3) days of receiving the notice required pursuant to subparagraph (i) of the paragraph 15(b) the subcontractor does not stop employing or contracting with the undocumented individual; except that Contractor shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. c. If Contractor violates these prohibitions, LCV 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 LCV. d. LCV may notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and LCV terminates the Agreement for such breach. [Rest of page intentionally left blank] DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 8 LCV Procurement and Installation Final 5/14 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. Lake Creek Village LLC By and through Eagle County Housing and Development Authority, its sole member By: _______________________ Jeanne McQueeney, Chair Attest: By: _____________________________ Regina O’Brien, Clerk CONTRACTOR: 360 CIVIL, INC. By:________________________________ Print Name:__________________________ Title: ______________________________ DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 President Patrick Burke 9 LCV Procurement and Installation Final 5/14 EXHIBIT A SCOPE OF SERVICES, EQUIPMENT, SCHEDULE, FEES DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 Date:5/1/2019 Proposal SUBMITTED TO: Eagle County Attn. Bill Wright 4923 Lake Creek Village Blvd. Edwards CO 81632 JOB NAME & ADDRESS:Lake Creek Village Path Realignment Lake Creek Village Architect/Engineer: Date of Plans: Site Visit We hereby propose: Relocate Bike Path from 100 Year Flood Plain South of buildings 10,11,12. Relocate to north of the flood plain with 6 inches of road base and placing 3 inches of asphalt pavement. Item Description Quantity Units Unit Price Amount 1 MOBILIZATION 1 LS 1,500.00 1,500.00$ 2 Excavation 300 CY 15.50 4,650.00$ 3 Export Onsite to Berm 75 CY 20.00 1,500.00$ 4 Topsoil Spread 50 CY 35.00 1,750.00$ 5 Subgrade Prep 392 SY 3.00 1,176.00$ 6 Roadbase Prep 6"132 TON 48.00 6,336.00$ 7 Asphalt Paving 3"65 TON 148.00 9,620.00$ 8 Shouldering 440 LF 1.50 660.00$ TOTAL BID 27,192.00$ DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 P.O. Box 2247, Gypsum, CO 81637 – (970) 445-1041 phone – patrick@360civil.com Project Notes: 1. One complete mobilization is included. Each Additional mobilization will be billed on a T&M basis. 2. Scheduling will be upon the mutual agreement between the Owner/Owners Rep. and 360 Civil, Inc. 3. 360 Civil, Inc. cannot guarantee complete drainage in areas with less than 2% of fall. 4. Permits, Permit Fees, Engineering, Surveying, Construction Staking, Traffic Control and Independent Testing are not included in this proposal. 5. No sawcuting or existing asphalt removals are included and should no t be necessary. 6. No irrigation relocation or repairs are included in pricing. 7. It is assumed that all large rocks can be relocated on the property. 8. Excavation and stabilization of soft areas, if encountered, are not included. This work will be completed on a time and materials basis per the geotechnical engineer’s recommendations. 9. Work will be performed under frost-free conditions, there are no provisions for winter protection in this proposal 10. Final billing will be based on actual quantities installed. 11. No work other than what is specifically stated above is included, implied or assumed in the prices quoted. 12. SX 75 PG 58-28 asphalt mix, will be utilized on this project. Alternate mixes may be subject to additional charges. 13. Pricing is good for the 2019 construction season only. Asphalt Pricing may be adjusted monthly due to oil price fluctuations. 14. These bid conditions in their entirety will become a governing part of any contract or subcontract agreement. This shall be accomplished by including a copy of this proposal in the contract or subcontract agreement. DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 P.O. Box 2247, Gypsum, CO 81637 – (970) 445-1041 phone – patrick@360civil.com DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 10 LCV Procurement and Installation Final 5/14 EXHIBIT B INSURANCE CERTIFICATES DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9 DocuSign Envelope ID: E913AB81-2A49-4F04-9DE3-812AE327A3D9