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HomeMy WebLinkAbout3. MKT Vail 2013 CSE Contract draft11 TOWN OF VAIL SERVICE CONTRACT THIS SERVICE CONTRACT (the "Contract") is made and entered into this 1st day of January, 2013, by and between the Town of Vail, 75 S, Frontage Rd, Vail, Colorado 81657, a Colorado municipal corporation (the "Town"), and MKT Vail, LLC, an independent contractor with a principal place of business at 1711 Geneva Drive, A-2, Vail, CO 81657 ("Contractor") (collectively the "Parties"). For the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. SCOPE OF WORK Contractor shall furnish all labor and materials required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are described or reasonably implied from the Scope of Work set forth in Exhibit A, attached hereto and incorporated herein by this reference. No change to the Scope of Work, including any additional compensation, shall be effective or paid unless authorized by written amendment executed by the Town II. TERM AND TERMINATION A. Contractor shall complete the Scope of Work on or before December 31, 2013. B. This Contract shall terminate when all the work described in the Scope of Work is completed to the Town's satisfaction (final acceptance), or upon the Town's providing Contractor with seven (7) days advance written notice, whichever occurs first; provided that the indemnification and warranty provisions of this Contract shall survive termination. III. COMPENSATION Upon final acceptance by the Town of the work set forth in the Scope of Work, the Town shall pay Contractor an amount not to exceed $49,900 dollars during and not to exceed $49,900 dollars for the period January 1, 2013 through December 31, 2013 (the "Contract Price"), subject to the requirements of C.R.S. § 38-26-107. Payment is agreed in monthly increments of $4158.33 for the 12 months of the contract period. Monthly invoices are agreed to be submitted to Town of Vail on or after the first of each month. Actual work completed is completed at $200 per hour, although contractor agrees that the entirety of the scope of work as outlined in Exhibit A will be completed comprehensively within the overall $49,900 fee. Any necessary and approved direct expenses will be billed incrementally at all times via prior agreement with CSE board or Town of Vail staff. IV. INDEPENDENT CONTRACTOR Contractor is an independent contractor and not the agent, employee or servant of the Town. Notwithstanding any other provision of this Contract, all personnel assigned by Contractor to perform work under the terms of this Contract shall be, and remain at all times, employees or agents of Contractor for all purposes, and that: A. Contractor shall satisfy all tax and other governmentally imposed responsibilities including, but not limited to payment of state, federal and social security taxes, 2 unemployment taxes, workers’ compensation and self-employment taxes. No Federal, State or local taxes of any kind shall be withheld or paid by the Town. B. Contractor is not entitled to unemployment insurance benefits or workers’ compensation benefits unless such coverages are provided by the independent contractor. V. RESPONSIBILITY Contractor hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and licenses in good standing. The services performed by Contractor shall be in accordance with generally accepted professional practices and the level of competency presently maintained by others in the same or similar type of work, and in compliance with applicable laws, ordinances, rules and regulations. The Town's review, approval or acceptance of, or payment for any work shall not be construed as a waiver of any rights under this Contract or any cause of action arising out of the performance of this Contract. VI. OWNERSHIP Any materials, items, and work specified in the Scope of Work, and any and all related documentation and materials provided or developed by Contractor shall be exclusively owned by the Town. Contractor expressly acknowledges and agrees that all work performed under the Scope of Work constitutes a "work made for hire." To the extent, if at all, that it does not constitute a "work made for hire," Contractor hereby transfers, sells, and assigns to the Town all of its right, title, and interest in such work. The Town may, with respect to all or any portion of such work, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change such work without providing notice to or receiving consent from Contractor. VII. INSURANCE A. Contractor shall procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor under this Contract, including the following, at a minimum: 1. Worker's compensation insurance as required by law; and (note that MKT Vail at present has only its principal, Adam Sutner, as the single employee; therefore Worker’s compensation insurance is not obligatory). 2. Commercial general liability insurance with minimum combined single limits of six hundred thousand ($600,000) each occurrence and one million dollars ($1,000,000) general aggregate naming the Town and the Town's officers, employees, and consultants as additional insureds. The policy shall be with a carrier and in a form acceptable to the Town at the Town's sole discretion. (Also as discussed, if we could strike this requirement from th discussion that would be greatly appreciated). B. Any insurance carried by the Town, its officers, or its employees or contractors is excess and not contributory insurance to that provided by Contractor. Contractor shall be solely responsible for any deductible losses under any policy. 3 C. Contractor shall provide to the Town a certificate of insurance as evidence that required policies are in full force and effect. D. Failure on the part of Contractor to procure or maintain the insurance required herein shall constitute a material breach of this Contract upon which the Town may immediately terminate this Contract, or at its discretion, the Town may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the Town shall be repaid by Contractor to the Town upon demand, or the Town may offset the cost of the premiums against any monies due to Contractor from the Town. VIII. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representatives, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including, without limitation, claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Contract, to the extent that such injury, loss or damage is attributable to the act, omission, error, professional error, mistake, negligence or other fault of Contractor, any subcontractor of Contractor, or any officer, employee, representative, or agent of Contractor or of any subcontractor of Contractor, or which arise out of any worker's compensation claim of any employee of Contractor or of any employee of any subcontractor of Contractor. Contractor, to the fullest extent permitted by law, shall defend, investigate, handle, respond and provide defense for and defend against any such liability, claims, damages, losses, expenses or demands at the sole expense of Contractor, or at the option of the Town, Contractor agrees to pay the Town or reimburse the Town for defense costs incurred by the Town in connection with any such liability, claims, damages, losses, expenses or demands. Contractor, to the fullest extent permitted by law, shall defend and bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not such liability, claims or demands alleged are groundless, false or fraudulent. This indemnification provision is intended to comply with C.R.S. § 13-21-111.5(6), as amended, and shall be read as broadly as permitted to satisfy that intent. IX. TERMINATION This Contract shall terminate when all the work described in the Scope of Work is completed to the Town's satisfaction, or upon the Town's providing Contractor with seven (7) days advance written notice, whichever occurs first. If the Contract is terminated by the Town's issuance of written notice, the Town shall pay Contractor for all work authorized and completed prior to the date of termination. X. ILLEGAL ALIENS A. Certification. By entering into this Contract, Contractor hereby certifies that, at the time of this certification, it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that Contractor will participate in either the E-Verify Program administered by the United States Department of Homeland Security and Social Security Administration or the Department Program administered by the Colorado Department of Labor and Employment to confirm the employment eligibility of all employees who are newly hired to perform work under this Contract. 4 B. Prohibited Acts. Contractor shall not: 1. Knowingly employ or contract with an illegal alien to perform work under this Contract; or 2. Enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. C. Verification. 1. If Contractor has employees, Contractor has confirmed the employment eligibility of all employees who are newly hired to perform work under this Contract through participation in either the E-Verify Program or the Department Program. 2. Contractor shall not use the E-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Contract is being performed. 3. If Contractor obtains actual knowledge that a subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien who is performing work under this Contract, Contractor shall: a. Notify the subcontractor and the Town within three (3) days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien who is performing work under this Contract; and b. Terminate the subcontract with the subcontractor if within three (3) days of receiving the notice required pursuant to subsection 1 hereof, the subcontractor does not stop employing or contracting with the illegal alien who is performing work under this Contract; except that Contractor shall not terminate the subcontract if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien who is performing work under this Contract. D. Duty to Comply with Investigations. Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation conducted pursuant to C.R.S. § 8-17.5-102(5)(a) to ensure that Contractor is complying with this Contract. E. Affidavits. If Contractor does not have employees, Contractor shall sign the "No Employee Affidavit" attached hereto. If Contractor wishes to verify the lawful presence of newly hired employees who perform work under this Contract via the Department Program, Contractor shall sign the "Department Program Affidavit" attached hereto. XI. WARRANTY Contractor shall warrant and guarantee all materials furnished and work performed by Contractor under this Contract for a period of two (2) years from the date of final acceptance by the Town. Under this warranty, Contractor agrees to repair or replace, at its own expense and under the 5 direction of the Town, any portion of the work or materials that fails or is defective, unsound, unsatisfactory because of materials or workmanship, or that is not in conformity with the provisions of the Contract. The expiration of the warranty period shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. XII. MISCELLANEOUS A. Governing Law and Venue. This Contract shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. B. Integration. This Contract and any attached exhibits constitute the entire agreement between Contractor and the Town, superseding all prior oral or written communications. C. Third Parties. There are no intended third-party beneficiaries to this Contract. D. Notice. Any notice under this Contract shall be in writing, and shall be deemed sufficient when directly presented or sent pre-paid, first class United States Mail to the address included on Page 1 of this Contract. E. Severability. If any provision of this Contract is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. F. Modification. This Contract may only be modified upon written agreement of the Parties. G. Assignment. Neither this Contract nor any of the rights or obligations of the Parties hereto, shall be assigned by either party without the written consent of the other. H. Governmental Immunity. The Town, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Contract, the monetary limitations (presently one hundred fifty thousand dollars ($150,000) per person and six hundred thousand dollars ($600,000) per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers or employees. I. Rights and Remedies. Delays in enforcement or the waiver of any one or more defaults or breaches of this Contract by the Town shall not constitute a waiver of any of the other terms or obligation of this Contract. The rights and remedies of the Town under this Contract are in addition to any other rights and remedies provided by law. The expiration of this Contract shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. J. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, and thus any obligations of the Town hereunder shall extend only to monies currently appropriated and shall not constitute a mandatory charge, requirement or liability beyond the current fiscal year. 6 IN WITNESS WHEREOF, the Parties hereto have executed this Contract on the date first set forth above. TOWN OF VAIL, COLORADO ____________________________________ Stan Zemler, Town Manager ATTEST: __________________________________ Lorelei Donaldson, Town Clerk APPROVED AS TO FORM: __________________________________ Matt Mire, Town Attorney CONTRACTOR By: ________________________________ MKT Vail, LLC STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to and acknowledged before me this ___ day of __________, 2012_, by _______________________ as _________________ of ________________________. My commission expires: (S E A L) ___________________________________ Notary Public