HomeMy WebLinkAbout20160055.tiffRESOLUTION
RE: APPROVE RETROACTIVE AGREEMENT FOR SERVICES AND MATERIALS AND
AUTHORIZE CHAIR TO SIGN - AMERICAN ARBORIST SERVICE
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Retroactive Agreement for Services
and Materials between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Office of Emergency Management, and
American Arborist Service, commencing January 7, 2013, and ending December 20, 2013, with
further terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Retroactive Agreement for Services and Materials between the County
of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
on behalf of the Office of Emergency Management, and American Arborist Service, be, and
hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 4th day of January, A.D., 2016, nunc pro tunc January 7, 2013.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
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Weld County Clerthe Board
BY.
AP
unty A ttorney
Date of signature:
Mike Freeman, Chair
an P. Conway, Pro-Tem
ara Kirkmeyer
Steve Moreno
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2016-0055
EM0017
BC0045
RETROACTIVE AGREEMENT FOR SERVICES AND MATERIALS
BETWEEN WELD COUNTY & AMERICAN ARBORIST SERVICE
THIS AGREEMENT is made and entered into this day of S �� r , 201a by and
between the County of Weld, a body corporate and politic of The State of Colorado, 6y and through its
Board of County Commissioners, whose address is 1150 "O" Street, Greeley, Colorado 80631 hereinafter
referred to as "County," and American Arborist Services, a corporation, who whose address is 9915 Navajo
Court, Longmont, CO 80504, hereinafter referred to as "Contractor".
WHEREAS, high levels of rainfall in September 2013 resulted in widespread flooding within Weld
County and other areas of Northern Colorado, and
WHEREAS, such flooding was extreme in nature and caused extensive damage to public
highways, bridges, and other property and posed a grave danger to the residents of Weld County, and
WHEREAS, Weld County roads needed repair as a result of the flooding, (hereinafter referred to as
the "Project"), and
WHEREAS, in the interests of public health, safety and welfare, it was necessary to undertake the
repair of these roads, and
WHEREAS, the County and Contractor negotiated a bid which is attached exhibit A, which was
signed on 9/26/2013, and
WHEREAS, in order for the County to clarify the term, scope, and cost of the projects, an amended
agreement is needed,
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the
parties hereto agree as follows:
1. Introduction.
The terms of this Agreement are contained in the terms recited in this document and in Exhibit A
each of which forms an integral part of this Agreement. Exhibit A is specifically incorporated herein by this
reference. County and Contractor acknowledge and agree that this Agreement, including specifically
Exhibit A defines the performance obligations of Contractor and Contractor's willingness and ability to meet
those requirements.
Exhibit A consists of County's Request for Bid (RFB) as set forth in "Bid Package No. B1300175" as
well as the response from the Contractor.
2. Service or Work. Contractor agrees to procure the materials, equipment and/or products
necessary for the Project and agrees to diligently provide all services, labor, personnel and
materials necessary to perform and complete the Project described in Exhibit A which is attached
hereto and incorporated herein by reference. Contractor shall faithfully perform the work in
accordance with the standards of professional care, skill, training, diligence and judgment provided
by highly competent Contractors performing services of a similar nature to those described in this
Agreement. Contractor shall further be responsible for the timely completion, and acknowledges
that a failure to comply with the standards and requirements of Exhibit A the time limits prescribed
by County may result in County's decision to withhold payment or to terminate this Agreement.
2016-0055
3. Term. The term of this Agreement begins upon January 7, 2013 and ends upon December 20,
2013. Both of the parties to this Agreement understand and agree that the laws of the State of
Colorado prohibit County from entering into Agreements which bind County for periods longer than
one year. Therefore, within the thirty (30) days preceding the anniversary date of this Agreement,
County shall notify Contractor if it wishes to renew this Contract.
4. Termination. County has the right to terminate this Agreement, with or without cause on thirty (30)
days written notice. Furthermore, this Agreement may be terminated at any time without notice
upon a material breach of the terms of the Agreement. However, nothing herein shall be construed
as giving Contractor the right to provide materials (or services) under this Agreement beyond the
time when such materials (or services) become unsatisfactory to the County.
5. Extension or Modification. Any amendments or modifications to this agreement 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. Accordingly, no claim that the 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.
6. Compensation/Contract Amount. Upon Contractor's successful completion of the Project, and
County's acceptance of the same, County agrees to pay an amount no greater than $182,875.00.
Contractor acknowledges no payment in excess of that amount will be made by County unless a
"change order" authorizing such additional payment has been specifically approved by the Director
of Weld County Public Works, or by formal resolution of the Weld County Board of County
Commissioners, as required pursuant to the Weld County Code. Any other provision of this
Agreement notwithstanding, in no event shall County be liable for payment for services rendered
and expenses incurred by Contractor under the terms of this Agreement for any amount in excess
of the sum above. Contactor acknowledges that any work it performs beyond that specifically
authorized by County is performed at Contractor's risk and without authorization under this
Agreement. County shall not be liable for the payment of taxes, late charges or penalties of any
nature other than the compensation stated herein.
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.
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 therefore 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)
7. Independent Contractor. Contractor agrees that it is an independent Contractor and that
Contractor's officers, agents or employees will not become employees of County, nor entitled to any
employee benefits from County as a result of the execution of this Agreement. Contractor shall
perform its duties hereunder as an independent Contractor. Contractor shall be solely responsible
for its acts and those of its agents and employees for all acts performed pursuant to this
Agreement. Contractor, its employees and agents are not entitled to unemployment insurance or
workers' compensation benefits through County and County shall not pay for or otherwise provide
such coverage for Contractor or any of its agents or employees. Contractor shall pay when due all
applicable employment taxes and income taxes and local head taxes (if applicable) incurred
pursuant to this Agreement. Contractor shall not have authorization, express or implied, to bind
County to any agreement, liability or understanding, except as expressly set forth in this Agreement.
8. 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 completion of this Project 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 the subject Project 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.
9. Ownership. All work and information obtained by Contractor under this Agreement or individual
work order shall become or remain (as applicable), the property of County. In addition, all reports,
data, plans, drawings, records and computer files generated by Contractor in relation to this
Agreement and all reports, test results and all other tangible materials obtained and/or produced in
connection with the performance of this Agreement, whether or not such materials are in completed
form, shall at all times be considered the property of the County. Contractor shall not make use of
such material for purposes other than in connection with this Agreement without prior written
approval of County.
10. Confidentiality. Confidential financial information of Contractor should be transmitted separately
from the main bid submittal, clearly denoting in red on the financial information at the top the word,
"CONFIDENTIAL." However, Contractor is advised that as a public entity, Weld County must
comply with the provisions of C.R.S. 24-72-201, et seq., with regard to public records, and cannot
guarantee the confidentiality of all documents. Contractor agrees to keep confidential all of
County's confidential information. Contractor agrees not to sell, assign, distribute, or disclose any
such confidential information to any other person or entity without seeking written permission from
the County. Contractor agrees to advise its employees, agents, and consultants, of the confidential
and proprietary nature of this confidential information and of the restrictions imposed by this
agreement.
11. Warranty. In addition to the foregoing warranties, Contractor is aware that all work performed on
this Project pursuant to this Agreement is subject to a one year warranty period during which
Contractor must correct any failures or deficiencies caused by contractor's workmanship or
performance. This warranty shall commence on the date of County's final inspection and
acceptance of the Project.
12. Acceptance of Services Not a Waiver. Upon completion of the work, Contractor shall submit to
County originals of all test results, reports, etc., generated during completion of this work.
Acceptance by County of reports, incidental material(s), and structures furnished under this
Agreement shall not in any way relieve Contractor of responsibility for the quality and accuracy of
the project. In no event shall any action by County hereunder constitute or be construed to be a
waiver by County of any breach of this Agreement or default which may then exist on the part of
Contractor, and County's action or inaction when any such breach or default shall exist shall not
impair or prejudice any right or remedy available to County with respect to such breach or default.
No assent, expressed or implied, to any breach of any one or more covenants, provisions or
conditions of the Agreement shall be deemed or taken to be a waiver of any other breach.
Acceptance by the County of, or payment for, the work completed under this Agreement shall not
be construed as a waiver of any of the County's rights under this Agreement or under the law
generally.
13. Insurance and Indemnification.
General Requirements: Contractors/Contract Professionals must secure, at or before the time of
execution of any agreement or commencement of any work, insurance covering all operations,
goods or services provided pursuant to this request.
Indemnity: The Contractor shall defend, indemnify and hold harmless County, its officers, agents,
and employees, from and against injury, loss damage, liability, suits, actions, or claims of any type
or character arising out of the work done in fulfillment of the terms of this Contract or on account of
any act, claim or amount arising or recovered under workers' compensation law or arising out of the
failure of the Contractor to conform to any statutes, ordinances, regulation, law or court decree.
14. Non -Assignment. Contractor may not assign or transfer this Agreement or any interest therein or
claim thereunder, without the prior written approval of County. Any attempts by Contractor to assign
or transfer its rights hereunder without such prior approval by County shall, at the option of County,
automatically terminate this Agreement and all rights of Contractor hereunder. Such consent may
be granted or denied at the sole and absolute discretion of County.
15. Examination of Records. To the extent required by law, the Contractor agrees that any duly
authorized representative of County, including the County Auditor, shall have access to and the
right to examine and audit any books, documents, papers and records of Contractor, involving all
matters and/or transactions related to this Agreement. The Contractor agrees to maintain these
documents for three years from the date of the last payment received.
16. Interruptions. Neither party to this Agreement shall be liable to the other for delays in delivery or
failure to deliver or otherwise to perform any obligation under this Agreement, where such failure is
due to any cause beyond its reasonable control, including but not limited to Acts of God, fires,
strikes, war, flood, earthquakes or Governmental actions.
17. Notices. County may designate, prior to commencement of work, its project representative
("County Representative") who shall make, within the scope of his or her authority, and all
necessary and proper decisions with reference to the project.
18. Compliance with Law. Contractor shall strictly comply with all applicable federal and State laws,
rules and regulations in effect or hereafter established, including without limitation, laws applicable
to discrimination and unfair employment practices.
19. Non -Exclusive Agreement. This Agreement is nonexclusive and County may engage or use other
Contractors or persons to perform services of the same or similar nature.
20. Entire Agreement/Modifications. This Agreement including the Exhibits attached hereto and
incorporated herein, contains the entire agreement between the parties with respect to the subject
matter contained in this Agreement. This instrument supersedes ail prior negotiations,
representations, and understandings or agreements with respect to the subject matter contained in
this Agreement. This Agreement may be changed or supplemented only by a written instrument
signed by both parties.
21. Fund Availability. Financial obligations of the County payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. Execution of this Agreement by County does not create an obligation on the part of
County to expend funds not otherwise appropriated in each succeeding year.
22. Employee Financial Interest/Conflict of Interest — C.R.S. §§24-18-201 et seq. and §24-50-507.
The signatories to this Agreement agree that to their knowledge, no employee of Weld County has
any personal or beneficial interest whatsoever in the service or property which is the subject matter
of this Agreement. County has no interest and shall not acquire any interest direct or indirect, that
would in any manner or degree interfere with the performance of Contractor's services and
Contractor shall not employ any person having such known interests. During the term of this
Agreement, Contractor shall not engage in any in any business or personal activities or practices or
maintain any relationships which actually conflicts with or in any way appear to conflict with the full
performance of its obligations under this Agreement. Failure by Contractor to ensure compliance
with this provision may result, in County's sole discretion, in immediate termination of this
Agreement. No employee of Contractor nor any member of Contractor's family shall serve on a
County Board, committee or hold any such position which either by rule, practice or action
nominates, recommends, supervises Contractor's operations, or authorizes funding to Contractor.
23. Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced
without such provision, to the extent that this Agreement is then capable of execution within the
original intent of the parties.
24. Governmental Immunity. No term or condition of this contract shall be construed or interpreted
as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other
provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or
hereafter amended.
25. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the
terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall
be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any
claim or right of action whatsoever by any other person not included in this Agreement. It is the
express intention of the undersigned parties that any entity other than the undersigned parties
receiving services or benefits under this Agreement shall be an incidental beneficiary only.
26. Board of County Commissioners of Weld County Approval. This Agreement shall not be valid
until it has been approved by the Board of County Commissioners of Weld County, Colorado or its
designee.
27. Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto,
shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision
included or incorporated herein by reference which conflicts with said laws, rules and/or regulations
shall be null and void. In the event of a legal dispute between the parties, Contractor agrees that the
Weld County District Court shall have exclusive jurisdiction to resolve said dispute.
28. Public Contracts for Services C.R.S. §8-17.5-101. Contractor certifies, warrants, and agrees that
it does not knowingly employ or contract with an illegal alien who will perform work under this
contract. Contractor will confirm the employment eligibility of all employees who are newly hired for
employment in the United States to perform work under this Agreement, through participation in the
E -Verify program of the State of Colorado program established pursuant to C.R.S. §8-17.5-
102(5)(c). Contractor shall not knowingly employ or contract with an illegal alien to perform work
under this Agreement or enter into a contract with a subcontractor that fails to certify with Contractor
that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work
under this Agreement. Contractor shall not use E -Verify Program or State of Colorado program
procedures to undertake pre -employment screening or job applicants while this Agreement is being
performed. If Contractor obtains actual knowledge that a subcontractor performing work under the
public contract for services knowingly employs or contracts with an illegal alien Contractor shall
notify the subcontractor and County within three (3) days that Contractor has actual knowledge that
a subcontractor is employing or contracting with an illegal alien and shall terminate the subcontract
if a subcontractor does not stop employing or contracting with the illegal alien within three (3) days
of receiving notice. Contractor shall not terminate the contract if within three days the subcontractor
provides information to establish that the subcontractor has not knowingly employed or contracted
with an illegal alien. Contractor shall comply with reasonable requests made in the course of an
investigation, undertaken pursuant to C.R.S. §8-17.5-102(5), by the Colorado Department of Labor
and Employment. If Contractor participates in the State of Colorado program, Contractor shall,
within twenty days after hiring a new employee to perform work under the contract, affirm that
Contractor has examined the legal work status of such employee, retained file copies of the
documents, and not altered or falsified the identification documents for such employees. Contractor
shall deliver to County, a written notarized affirmation that it has examined the legal work status of
such employee, and shall comply with all of the other requirements of the State of Colorado
program. If Contractor fails to comply with any requirement of this provision or of C.R.S. §8-17.5-
101 et seq., County, may terminate this Agreement for breach, and if so terminated, Contractor
shall be liable for actual and consequential damages.
Except where exempted by federal law and except as provided in C.R.S. § 24-76.5-103(3), if
Contractor receives federal or state funds under the contract, Contractor must confirm that any
individual natural person eighteen (18) years of age or older is lawfully present in the United States
pursuant to C.R.S. § 24-76.5-103(4), if such individual applies for public benefits provided under the
contract. If Contractor operates as a sole proprietor, it hereby swears or affirms under penalty of
perjury that it: (a) is a citizen of the United States or is otherwise lawfully present in the United
States pursuant to federal law, (b) shall produce one of the forms of identification required by
C.R.S. § 24-76.5-101, et seq., and (c) shall produce one of the forms of identification required by
C.R.S. § 24-76.5-103 prior to the effective date of the contract.
29. Attorneys Fees/Legal Costs. In the event of a dispute between County and Contractor,
concerning this Agreement, the parties agree that each party shall be responsible for the payment
of attorney fees and/or legal costs incurred by or on its own behalf.
Acknowledgment. County and Contractor acknowledge that each has read this Agreement,
understands it and agrees to be bound by its terms. Both parties further agree that this Agreement,
with the attached Exhibits and , is the complete and exclusive statement of agreement
between the parties and supersedes all proposals or prior agreements, oral or written, and any
other communications between the parties relating to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement this / c day of
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CONTRACTOR:
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Name:
Title: O,O.2.
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WELD COuG id .
ATTEST: uW1/ •
Weld ' o ,ty Clerk to the B
BY:
Deputy (jerk to the B
APPROVED AS T FUNDING:
Controller
APP ED AS O FORM:
County Attorney
Date Rri ? 5 -ti. ,der
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ke Freeman, Chair JAN 0 4 2016
APPROVED AS TO SUBSTANCE:
:ICS/
Elected Official or Department Head
Director of GenPA
ral Services
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