CITY CONTRACT NO. MEMORANDUM OF UNDERSTANDING BETWEEN EMPIRE BUILDERS LLC AND THE CITY OF CHEYENNE

Transcription

1 CITY CONTRACT NO. MEMORANDUM OF UNDERSTANDING BETWEEN EMPIRE BUILDERS LLC AND THE CITY OF CHEYENNE 1. Parties. This Memorandum of Understanding (MOU) is made and entered into by and between Empire Builders LLC ( EMPIRE ), CR 106, Briggsdale, Colorado 80611, and the City of Cheyenne, a municipality duly organized and existing under the laws of the State of Wyoming ( City ), 2101 O Neil Avenue, Cheyenne, Wyoming Purpose. The purpose of this MOU is to specify the relative contributions of EMPIRE, financial and otherwise, and the use of said contributions to the City with respect to the construction of Capitol Ridge Subdivision on the west side of Cribbon Avenue between 4 th Street and 5 th Street. It is mutually understood and agreed that EMPIRE s financial contribution will be used for future improvements to the David R. Romero South Cheyenne Community Park ( Romero Park ). 3. Term. This MOU shall commence upon the day and date last signed and executed by the duly authorized representatives of the parties to this MOU, and shall remain in full force and effect until the project described in Sections 5 and 6., a., b., and c., below has been completed and accepted by both EMPIRE and the City. EMPIRE S warranty obligations under Section 5., c., of this MOU shall survive the termination of this MOU. The City s obligation, pursuant to Section 6., d., below to use funding provided by EMPIRE for future improvements in Romero Park shall survive the termination of this MOU. Except for the warranty obligations of EMPIRE under Section 5., c., and the City s obligations under Section 6., d., it is the intent of the parties that this MOU will terminate when the detention and water quality improvements described below are constructed and accepted by the City. 4. Payment. EMPIRE agrees to pay to the City for EMPIRE s share of future improvements in Romero Park the amount of Seventeen Thousand Five Hundred Dollars ($17,500.00). Said payment shall be made on or before June 1, Responsibilities of EMPIRE. a. EMPIRE shall furnish funding as provided in section 4 above. b. EMPIRE shall be responsible for the design and construction of detention and water quality improvements in Romero Park, the design and construction of which must be approved by the City of Cheyenne Engineering Department. c. No earlier than twenty (20) months and no later than twenty-four (24) months following the acceptance by the City of the detention and water quality improvements in Romero Park, EMPIRE shall complete a two (2) year warranty walk-through of said improvements with the City of Cheyenne Engineering Department. Subject to applicable law, EMPIRE s warranty obligations with respect to said improvements shall remain in full force and effect until such time as the warranty walk-through provided for in this sub-section is completed and all warranty issues have been addressed. 1

2 6. Responsibilities of City. a. In conjunction with the City of Cheyenne Engineering Department and the City of Cheyenne Parks & Recreation Department shall be responsible for the review and approval of the location and layout of the detention and water quality improvements in Romero Park. b. The City of Cheyenne Engineering Department shall be responsible for the review and approval of the design of the detention and water quality improvements provided by EMPIRE s engineer to ensure compliance with City construction standards, and drainage and storm water detention requirements. c. The City of Cheyenne Engineering Department shall be responsible for the review and approval of the final construction of the detention and water quality improvements provided by EMPIRE to ensure compliance with City construction standards, and drainage and storm water detention requirements. d. The City shall utilize funding provided in this MOU to make future improvements to Romero Park. 7. Indemnification / Hold Harmless. EMPIRE agrees to indemnify, hold harmless and defend the City from and against any and all liabilities, claims, penalties, forfeitures and suits, and the cost and expenses incident thereto, including reasonable attorney s fees, which may hereafter arise as a result of death or bodily injury to any person, destruction or damage to any property, contamination of or adverse effects on the environment, or any violation of governmental laws, regulations or orders to the extent caused by (1) EMPIRE S breach of any term or provision of this MOU; or (2) any negligent or wrongful act, error or omission by EMPIRE, or its employees or subcontractors in the performance of this MOU. EMPIRE acknowledges that it may incur a financial obligation to the City pursuant to the terms of this paragraph. 8. Insurance. EMPIRE, or one or more sub-contractors engaged by EMPIRE to perform construction services for the improvements to be constructed within Romero Park pursuant to this MOU, shall provide the City with proof of the following insurance coverages: Commercial General Liability Insurance For claims arising out of bodily injury, illness or death, or from damage to or destruction of property of others, including loss or use thereof, with minimum limits of $1,000,000 per occurrence, $2,000,000 aggregate for the entire term of this MOU. Business Automobile Insurance Including owned, non-owned and hired vehicles with minimum limits for bodily injury and property damage of $1,000,000 per accident for the entire term of this MOU. 2

3 Workers Compensation Workers Compensation coverage shall be in effect for the entire term of the this MOU, as required by Wyoming law, for all employees or agents providing services under this MOU. EMPIRE, or one or more sub-contractors engaged by EMPIRE to provide services under this MOU, shall provide the City with proof of workers compensation or employer s liability insurance coverage. Professional Liability Insurance EMPIRE, or one or more sub-contractors engaged by EMPIRE to perform professional design services for the improvements to be constructed within Romero Park pursuant to this MOU, shall provide proof of professional liability insurance or errors and omissions liability insurance in an amount not less than $500,000 to protect the City from any and all claims arising from EMPIRE S negligence in the performance of duties under this MOU. The City prefers that this liability insurance coverage be provided pursuant to an occurrence policy. If this coverage is provided pursuant to a "claims made" policy: (1) EMPIRE, or one or more sub-contractors engaged by EMPIRE to perform professional design services, shall, concurrently with the execution of this MOU, provide the City with a certificate of insurance demonstrating that such coverage is or shall be in effect at the time EMPIRE begins the provision of services under this MOU; and (2) In the event professional design services extend into a future policy period, EMPIRE, or one or more sub-contractors engaged by EMPIRE to perform professional design services, shall, prior to the policy expiration date, provide the City with a new certificate of insurance demonstrating that such coverage is or shall be in effect during all periods of time that professional design services will be provided under this MOU; and (3) EMPIRE, or one or more sub-contractors engaged by EMPIRE to perform professional design services, shall maintain said "claims made" coverage for a period of five (5) years following the last date that professional design services are provided under this MOU; and (4) In the event of termination of "claims made" coverage prior to the expiration of the periods provided in subparagraphs (1), (2), or (3) of this paragraph, EMPIRE, or one or more sub-contractors engaged by EMPIRE to perform professional design services, shall provide to the City advance written notification of the termination of said coverage and shall provide the City with an endorsement for an extended reporting period ("tail coverage") which shall be in effect for a period of time not less than five (5) years following the last date that professional design services are provided under this MOU. 3

4 Additional Insurance Information EMPIRE, or one or more of its sub-contractors engaged to perform services under this MOU, shall name the City of Cheyenne as an Additional Insured by endorsement on its insurance policies, with the exception of worker s compensation and professional liability insurance, and shall provide the City with a copy of the endorsements. EMPIRE, or one or more of its sub-contractors engaged to perform services under this MOU, shall provide the City with certificates of insurance acknowledging the above-stated coverages prior to beginning any work under this MOU. It is understood and agreed that these policies are primary and not contributory. All policies required under this MOU shall be in effect for the duration of this MOU. It shall be an affirmative obligation upon EMPIRE to immediately notify in writing the City of any fact, circumstance, or occurrence that has resulted in or may result in the cancellation or substantive change of any insurance coverage required by this MOU, and failure to do so shall be construed to be a breach of this MOU. In addition, EMPIRE, or one or more of its sub-contractors engaged to perform services under this MOU, shall provide the City with copies of insurance policies and policy endorsements listing the City of Cheyenne as an additional insured. The City s failure to request or review such policies, endorsements, or certificates shall not affect the City s rights or EMPIRE s obligations hereunder. Any insurance company providing coverage under this MOU shall have a minimum A. M. Best rating of A- (excellent). 9. General Provisions. a. Amendments. Either party may request changes to this MOU. Any changes, modifications, revisions or amendments to this MOU which are mutually agreed upon by and between the parties to this MOU shall be incorporated by written instrument, executed and signed by all parties to this MOU. b. Applicable Law. The construction, interpretation and enforcement of this MOU shall be governed by the laws of the State of Wyoming. The courts of the State of Wyoming shall have jurisdiction over any action arising out of this MOU and over the parties, and the venue shall be the First Judicial District, Laramie County, Wyoming. c. Assignment. This MOU shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, transferees, and permitted assignees. Neither party shall assign this MOU without the express written consent of the other. d. Availability of Funds. Each payment obligation imposed on the City pursuant to this MOU is conditioned upon the availability of government funds which are appropriated or allocated for the payment of such obligation. If funds are not allocated and available for the continuance of the services required by this MOU, this MOU may be terminated by the City at the end of the period for which the funds are available. The City shall notify the other party at the 4

5 earliest possible time of the services which will or may be affected by a shortage of funds. e. Force Majeure. Neither party shall be liable to perform under this MOU if such failure arises out of causes beyond control and without the fault or negligence of said party. Such causes may include, but are not limited to, Acts of God or the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather. f. Notices. All notices arising out of or from the provisions of this MOU shall be in writing and given to the parties either by regular mail or delivery in person. g. Prior Approval. This MOU shall not be binding upon either party until this MOU has been approved by the Governing Body of the City of Cheyenne. h. Governmental Immunity. Except with respect to enforcement of this MOU by and between the parties hereto the City of Cheyenne does not waive its governmental immunity and expressly reserves all immunities and defenses available under the Wyoming Governmental Claims Act (W.S , et seq.) or as otherwise provided by law with respect to any action based on or occurring as a result of this MOU. i. Third Party Beneficiary Rights. The parties do not intend to create in any other individual or entity the status of third party beneficiary, and this MOU shall not be construed so as to create such status. The rights, duties and obligations contained in this MOU shall operate only between the parties to this MOU, and shall inure solely to the benefit of the parties to this MOU. The provisions of this MOU are intended only to assist the parties in determining and performing their obligations under this MOU. The parties to this MOU intend and expressly agree that only parties signatory to this MOU shall have any legal or equitable right to seek to enforce this MOU, to seek any remedy arising out of a party s performance or failure to perform any term or condition of this MOU, or to bring an action for the breach of this MOU. j. Compliance with Laws. EMPIRE shall comply with all applicable federal, state and local laws, rules and regulations in the performance of this contract, including all applicable Federal and State laws, municipal ordinances, and the rules and regulations of all authorities having jurisdiction over design and construction of the project, which are deemed to be included in this MOU the same as though herein written out in full. k. Independent Contractor. At all times during the term of this MOU, EMPIRE shall be considered an independent contractor. Neither EMPIRE nor any one employed by it shall represent, act, purport to act or be deemed to be the agent, representative, employee or servant of the City. l. Notices. Any notice, correspondence or billing required to be given by the terms of this MOU shall be delivered by hand, or delivered by mail, postage prepaid, to the addresses of the respective parties listed above. m. Waiver. The waiver by either party of any term, condition or covenant, or breach of any term, condition or covenant, shall not constitute a waiver of any other term, condition or covenant, or breach thereof. 5

6 n. Severability. If any provision, section, subsection, sentence, clause, or phrase of this MOU is invalidated by any court of competent jurisdiction, such holding shall not affect the validity of the remainder of this MOU, which shall continue in full force and affect. o. Entirety of MOU. This MOU, consisting of six pages, represents the entire and integrated MOUs between the parties and supersedes all prior negotiations, representations and MOUs, whether written or oral. 10. Signatures. In witness whereof, the parties to this MOU, through their duly authorized representatives, have executed this MOU on the days and dates set out below, and certify that they have read, understood, and agreed to the terms and conditions of this MOU as set forth herein. The effective date of this MOU is the date of the signature last affixed to this page. Empire Builders LLC Date Bill Bruso, Member CITY OF CHEYENNE Date Richard L. Kaysen, Mayor (SEAL) Attest: Carol Intlekofer, City Clerk 6