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HomeMy WebLinkAboutPIERSON'S CONCRETE CONSTRUCTION COMPANY - CONTRACT - AGREEMENT MISC - PIERSON'S CONCRETE CONSTRUCTION COMPANYOfficial Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 1 of 12 SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and PIERSON'S CONCRETE CONSTRUCTION COMPANY, a Colorado Corporation, hereinafter referred to as "Service Provider". WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit A, consisting of three (3) pages and incorporated herein by this reference. 2. Contract Period. This Agreement shall commence May 4, 2023, and shall continue in full force and effect until June 30, 2024, unless sooner terminated as herein provided. 3. Early Termination by City. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Service Provider. Such notice shall be delivered at least ten (10) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Service Provider shall submit a final invoice within ten (10) days of the effective date of termination. Undisputed invoices shall be paid Net 30 days of the date of the invoice. Such payment shall be the Service Provider's sole right and remedy for such termination. 4. Notices. All notices provided under this Agreement shall be effective immediately when emailed or three (3) business days from the date of the notice when mailed to the following addresses: Service Provider: City: Copy to: Pierson's Concrete Construction Company Attn: Natalie Pierson 250 Barberry Pl. Loveland, CO 80537 natalie@piersonconcrete.co m City of Fort Collins Attn: Brian Hergott PO Box 580 Fort Collins, CO 80522 bhergott@fcgov.com City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com 5. City Representative. The City will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 2 of 12 proper decisions with reference to the services provided under this agreement. All requests for contract interpretations, change order, and other clarification or instruction shall be directed to the City Representative. The initial City Representative for this agreement is Brian Hergott and can be reached at bhergott@fcgov.com. The Representative is subject to change by the City. 6. Compensation. The City shall pay the Service Provider for the performance of this Agreement, subject to additions and deletions provided herein, Twenty Five Thousand Seven Hundred Nineteen Dollars and Fifty Two Cents ($25,719.52) as per the attached Exhibit A, consisting of three (3) pages and incorporated herein by this reference. Invoices shall be emailed to invoices@fcgov.com with a copy to the City Representative. The cost of the work completed shall be paid to the Service Provider following the submittal of a correct itemized invoice by the Service Provider. The City is exempt from sales and use tax. The City’s Certificate of Exemption license number is 09804502. A copy of the license is available upon written request. The City pays invoices on Net 30 days from the date of the invoice. 7. Appropriation. To the extent this Agreement or any provision in it constitutes a multiple fiscal year debt or financial obligation of the City, it shall be subject to annual appropriation by City Council as required in Article V, Section 8(b) of the City Charter, City Code Section 8 -186, and Article X, Section 20 of the Colorado Constitution. The City shall have no obligation to continue this Agreement in any fiscal year for which no such supporting appropriation has been made. 8. Independent Service Provider. The services to be performed by Service Provider are those of an independent service provider and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Service Provider's compensation hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. 9. Subcontractors. Service Provider may not subcontract any of the Work set forth in the Exhibit A, without the prior written consent of the City, which shall not be unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of the City), then the following provisions shall apply: (a) the subcontractor must be a reputable, qualified firm with an established record of successful performance in its respective trade performing identical or substantially similar work, (b) the subcontractor will be required to comply with all applicable terms of this Agreement, (c) the subcontract will not create any contractual relationship between any such subcontractor and the City, nor will it obligate the City to pay or see to the payment of any subcontractor, and (d) the work of the subcontractor will be subject to inspection by the City to the same extent as the work of the Service Provider. Irrespective of any subcontractors named in Exhibit A, Service Provider shall be solely responsible for performance of all duties hereunder. DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 3 of 12 10. Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the City. 11. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement or cause of action arising out of performance of this Agreement. 12. Warranty. a. Service Provider warrants that all work performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for work of a similar nature. b. Unless otherwise provided in the Agreement, all materials and equipment incorporated into any work shall be new and, where not specified, of the most suitable grade of their respective kinds for their intended use, and all workmanship shall be acceptable to City. c. Service Provider warrants all equipment, materials, labor and other work, provided under this Agreement, except City-furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period, the longer of; i.) The original manufacturer’s warranty term; or ii.) beginning with the start of the work and ending twelve (12) months from and after final acceptance under the Agreement, regardless whether the same were furnished or performed by Service Provider or by any of its subcontractors of any tier. Upon receipt of written notice from City of any such defect or nonconformances, the affected item or part thereof shall be redesigned, repaired, or replaced by Service Provider in a manner and at a time acceptable to City. 13. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default thereof. 14. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail themselves of any other remedy at law or equity. If the non-defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees and costs incurred because of the default. 15. Entire Agreement; Binding Effect; Order of Precedence; Authority to Execute. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 4 of 12 the entire Agreement of the parties regarding this transaction and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. In the event of a conflict between terms of the Agreement and any exhibit or attachment, the terms of the Agreement shall prevail. Each person executing this Agreement affirms that they have the necessary authority to sign on behalf of their respective party and to bind such party to the terms of this Agreement. 16. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit B, consisting of one (1) page attached hereto, and incorporated herein by this reference. The Service Provider before commencing services hereunder, shall deliver to the City's Purchasing Director, purchasing@fcgov.com or P. O. Box 580, Fort Collins, Colorado 80522, one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. 17. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution, and enforcement of this Agreement. The Parties further agree that Larimer County District Court is the proper venue for all disputes. If the City subsequently agrees in writing that the matter may be heard in federal court, venue will be in Denver District Court. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 18. Prohibition Against Unlawful Discrimination. The City, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, affirmatively ensures that for all contracts entered into with the City, disadvantaged business enterprises are afforded a full and fair opportunity to bid on the contract and are not to be discriminated against on the grounds of race, color, or national origin in consideration for an award. The City strictly prohibits unlawful discrimination based on an individual’s gender (regardless of gender identity or gender expression), race, color, religion, creed, national origin, ancestry, age 40 years or older, marital status, disability, sexual orientation, genetic information, or other DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 5 of 12 characteristics protected by law. For the purpose of this policy “sexual orientation” means a person’s actual or perceived orientation toward heterosexuality, homosexuality, and bisexuality. The City also strictly prohibits unlawful harassment in the workplace, including sexual harassment. Further, the City strictly prohibits unlawful retaliation against a person who engages in protected activity. Protected activity includes an employee complaining that he or she has been discriminated against in violation of the above policy or participating in an employment discrimination proceeding. The City requires its vendors to comply with the City’s policy for equal employment opportunity and to prohibit unlawful discrimination, harassment and retaliation. This requirement applies to all third-party vendors and their subcontractors at every tier. 19. Governmental Immunity Act. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the notices, requirements, immunities, rights, benefits, protections, limitations of liability, and other provisions of the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. and under any other applicable law. 20. Colorado Open Records Act. The City is subject to Sec. 24-72-201 et seq. of the Colorado Revised Statute (CORA). This Agreement is subject to public disclosure in whole pursuant to CORA. 21. Dust Control. The Service Provider shall abide by the City of Fort Collins “Dust Control and Prevention Manual,” which is available for public download at https://www. fcgov.com/ airquality/pdf/dust-prevention-and-control-manual.pdf, and is incorporated herein by this reference. The City of Fort Collins has implemented this manual for all projects performed for the City of Fort Collins or located within the City of Fort Collins City limits. 22. Force Majeure. No Party hereto shall be considered in default in the performance of an obligation hereunder to the extent that performance of such obligation is delayed, hindered, or prevented by force majeure. Force majeure shall be any cause beyond the control of the defaulting Party which could not reasonably have been foreseen and guarded against. Force majeure includes, but is not limited to, acts of God, fires, riots, pandemics, incendiarism, interference by civil or military authorities, compliance with regulations or orders of military authorities, and acts of war (declared or undeclared), provided such cause could not have been reasonably foreseen and guarded against by the defaulting Party. Force majeure shall not include increases in labor, commodity, utility, material, supply, fuel, or energy costs, or compliance with regulations or orders of civil authorities. To the extent that the performance is actually prevented, the Service Provider must provide written notice to the City of such condition within ten (10) days from the onset of such condition. 23. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit C - Confidentiality, consisting of one (1) page, attached hereto, and incorporated herein by this reference. DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 6 of 12 [Signature Page Follows] DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 7 of 12 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul, Purchasing Director Date: ATTEST: APPROVED AS TO FORM: Pierson’s Concrete Construction Company By: Printed: Title: Date: DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 5/8/2023 Natalie Pierson OM Assistant City Attorney 5/8/2023 City Clerk Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 8 of 12 EXHIBIT A SCOPE OF SERVICES DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 9 of 12 DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 10 of 12 DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 11 of 12 EXHIBIT B INSURANCE REQUIREMENTS The Service Provider will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies. In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. Insurance certificates should show the certificate holder as follows: City of Fort Collins Purchasing Division PO Box 580 Fort Collins, CO 80522 The City, its officers, agents and employees shall be named as additional insureds on the Service Provider 's general liability and automobile liability insurance policies by marking the appropriate box or adding a statement to this effect on the certificate, for any claims arising out of work performed under this Agreement. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement. Workers' Compensation & Employer’s Liability insurance shall conform with statutory limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee, or as required by Colorado law. B. General Liability. The Service Provider shall maintain during the life of this Agreement such General Liability as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for General Liability, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. C. Automobile Liability. The Service Provider shall maintain during the life of this Agreement such Automobile Liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for Automobile Liability, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 Official Purchasing Document Last updated 2/1/2023 Services Agreement Pierson’s Concrete Construction Company Page 12 of 12 EXHIBIT C CONFIDENTIALITY IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to this Agreement (the “Agreement”), the Service Provider hereby acknowledges that it has been informed that the City has established policies and procedures with regard to the handling of confidential information and other sensitive materials. In consideration of access to certain information, data and material (hereinafter individually and collectively, regardless of nature, referred to as “information”) that are the property of and/or relate to the City or its employees, customers or suppliers, which access is related to the performance of services that the Service Provider has agreed to perform, the Service Provider hereby acknowledges and agrees as follows: That information that has or will come into its possession or knowledge in connection with the performance of services for the City may be confidential and/or proprietary. The Service Provider agrees to treat as confidential (a) all information that is owned by the City, or that relates to the business of the City, or that is used by the City in carrying on business, and (b) all information that is proprietary to a third party (including but not limited to customers and suppliers of the City). The Service Provider shall not disclose any such information to any person not having a legitimate need-to-know for purposes authorized by the City. Further, the Service Provider shall not use such information to obtain any economic or other benefit for itself, or any third party, except as specifically authorized by the City. The foregoing to the contrary notwithstanding, the Service Provider understands that it shall have no obligation under this Agreement with respect to information and material that (a) becomes generally known to the public by publication or some means other than a breach of duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the request for such disclosure is proper and the disclosure does not exceed that which is required. In the event of any disclosure under (b) above, the Service Provider shall furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and shall promptly advise the City in writing of each such disclosure. In the event that the Service Provider ceases to perform services for the City, or the City so requests for any reason, the Service Provider shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its possession or control or as to which it otherwise has access. The Service Provider understands and agrees that the City’s remedies at law for a breach of the Service Provider’s obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event of any such breach, be entitled to seek equitable relief (including without limitation preliminary and permanent injunctive relief and specific performance) in addition to all other remedies provided hereunder or available at law. DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 ABCD EFGHIJ Dear Policyholder, Thank you for choosing Federated Insurance to handle your insurance and risk management needs. The attached certificate document(s) have been issued or updated. Please feel free to contact us with any additional changes, additions or deletions that may be needed by contacting the Federated Client Contact Center at: E-mail:clientcontactcenter@fedins.com Phone:1-888-333-4949 Fax:507-446-4664 Thank you for your business! Client Contact Center Enclosed: Certificate Document(s) MISC-0829 (03-22) DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 © Insurance Services Office, Inc., 2018 Policy Number: Transaction Effective Date: 9841477 07/01/2022 This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART is amended to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured 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; in the performance of your ongoing operations for the additional insured. However,the insurance afforded to such additional insured: Only applies to the extent permitted by law; and Will not be broader than that which you are required by the contract or agreement to provide for such additional insured. A person's or organization's status as an additional insured under this endorsement ends when your operations for that additional insured are completed. With respect to the insurance afforded to these additional insureds,the following additional exclusions apply: This insurance does not apply to: "Bodily injury","property damage"or "personal and advertising injury"arising out of the rendering of,or the failure to render, any professional architectural,engineering or surveying services, including: The preparing,approving,or failing to prepare or approve, maps, shop drawings, opinions,reports,surveys,field orders, change orders or drawings and specifications; or Supervisory,inspection,architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision,hiring, employment,training or monitoring of others by that insured,if the "occurrence"which caused the "bodily injury"or "property damage",or the offense which caused the "personal and advertising injury",involved the rendering of or the failure to render any professional architectural,engineering or surveying services. Page 1 of 2 CG 20 33 12 19 COMMERCIAL GENERAL LIABILITY CG 20 33 12 19 A.Section II -Who Is An Insured 1. 2. 1. 2. B. 1. a. b. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - AUTOMATIC STATUS WHEN REQUIRED IN A WRITTEN CONSTRUCTION AGREEMENT WITH YOU THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6 © Insurance Services Office, Inc., 2018 Policy Number: Transaction Effective Date: 9841477 07/01/2022 "Bodily injury"or "property damage" occurring after: All work,including materials,parts or equipment furnished in connection with such work,on the project (other than service,maintenance or repairs)to be performed by or on behalf of the additional insured(s)at the location of the covered operations has been completed; or That portion of "your work"out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. With respect to the insurance afforded to these additional insureds,the following is added to The most we will pay on behalf of the additional insured is the amount of insurance: Required by the contract or agreement you have entered into with the additional insured; or Available under the applicable limits of insurance; whichever is less. This endorsement shall not increase the applicable limits of insurance. Page 2 of 2 CG 20 33 12 19 2. a. b. C. Section III - Limits Of Insurance: 1. 2. DocuSign Envelope ID: 056B2B43-0E75-43BC-A393-4E26BF3E1FE6