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DEVELOPMENT AGGREEMENT FOR 'TRAILERWRAP'
BETWEEN
THE UNIVERSITY OF COLORADO
AND
MAPLETON HOME ASSOCIATION
AND
THISTLE COMMUNITY HOUSING
THIS Agreement (“Agreement”) is entered into this 29 day of September, 2005 between The Regents of the University of Colorado, a body corporate, for and on behalf of the University of Colorado at Denver and Health Sciences Center and the Children, Youth and Environments Center for Research and Design in the College of Architecture and Planning (hereinafter referred to as “UCDHSC” or “University”) and the Mapleton Mobile Home Association (hereinafter referred to as “MHA”) and Thistle Community Housing (hereinafter referred to as “TCH”). UCDHSC, MHA, and TCH herein after are referred to collectively as “the Parties”.
RECITALS
WHEREAS the Parties desire to improve an existing unoccupied mobile home as part of a special demonstration at the Mapleton Mobile Home Park (CU Demonstration Project at Mapleton) and
WHEREAS the goal of this demonstration is to educate the public, design professionals, contractors, etc. of the feasibility of creative design and material use to substantially improve older mobile home units in terms of livability, sustainability and energy efficiency and
WHEREAS the Parties desire to form a Project Management Committee to guide the implementation of the project, oversee the budget, and approve expenditures and
WHEREAS the Project Management Committee will consist of one voting member from each of the three partners, MHA, the University, and TCH and
WHEREAS MHA desires to obtain the advice and assistance of the UCDHSC College of Architecture and Planning to design, construct, and evaluate the feasibility of improvements to older mobile homes and
WHEREAS UCDHSC desires to enter into an agreement to provide design services along with advice and assistance for MHA as part of its educational program for its students and as part of its commitment to community involvement in the State of Colorado;
THEREFORE, with intent to be legally bound, and in consideration of the covenants and promises hereinafter made, the Parties understand and agree as follows:
I. Scope of Work
A. The following generally describes the roles and responsibility of each party:
MHA – MHA is the owner of the unit being used for the project and will manage the lot on which the unit is located. MHA will waive lot rent for 12 months following the signing of this agreement. MHA will participate in Grant fundraising needed to cover the hard and soft costs to improve the mobile home according to the Project Goal. Upon completion of the demonstration period, MHA will sell the improved mobile home. MHA will be a member with one vote of the Project Management Committee.
UCDHSC – The University (“University” in Section I.A is defined as the students in the School of Architecture and Planning with supervision by Assistant Professor Michael Hughes and Professor Willem Van Vliet) will advise MHA on the design and improvement of the existing mobile home located on the site located at Lot #81 in the Mapleton Mobile Home Park at 2635 Mapleton Ave., Boulder, Colorado. The University will provide design services and will assist MHA to obtain and coordinate professional design engineering, electrical contracting, and plumbing contracting. The University will assist MHA to obtain applicable municipal permits and coordinate the construction management of the project. The University will provide labor through a student internship program during the construction process.
The design and construction of the project will take place on and off the site during the 12 months following the signing of this agreement.
The University will participate in Grant fundraising needed to cover the hard costs to improve the mobile home according to the project design. The University will contribute grant funds only and will not assume any liability for financing the project beyond the grant funding acquired at the time of this contract. The University estimates that the amount of Grant funding currently available to cover the hard and soft costs related to the project will be approximately $14,000. The University will be a member with one vote of the Project Management Committee.
TCH – TCH is the owner of the land on which the Project is located. Following the use of the grant funds above, TCH will contribute capital in an amount up to $16,000 needed to cover the hard and soft costs to improve the mobile home according to the Project Goals. Included in this amount is a $1,650 reimbursement to MHA for initial moving and tie-down expenses. Upon request, TCH will provide technical assistance to both CU and MHA regarding development and finance. TCH will be a member with one vote of the Project Management Committee.
B. Funding provided by grants, in-kind and other donations and TCH’s contribution will provide all materials, labor, supplies, equipment and permits required to complete the project. The budgeting, scheduling and procurement of all materials, supplies and equipment required during construction will be managed by UCDHSC in consultation with the Project Management Committee. The Project Management Committee will not be able to impose additional costs on any member of the Project Management Committee.
C. The Project Management Committee will provide the following on-site facilities during the construction process for the duration of the project; via in-kind donations, incurred costs or existing facilities. The scheduling and procurement of all facilities required during the construction will be managed by UCDHSC in consultation with the Project Management Committee.
D. In consideration of the above, the parties agree to the following:
1) Upon completion of the improvements on the mobile home unit, CU will show the unit per the Project Goal for a period of time not to exceed 6 weeks (Demonstration Period). MHA and TCH may concurrently show the unit per the Project Goal during the same period.
2) Upon completion of the Demonstration Period, MHA will sell the unit at a price established by the Project Management Committee. All parties will work together to establish the sales price at the beginning of the project as this will impact the level of finishes and cost of the project. The proceeds of the sale will be distributed as follows:
1st to TCH in the amount of its direct capital contribution to the project. The TCH direct capital contribution will be limited to:
a) The outstanding balance of any loans or capital used to improve the mobile home including both hard and soft costs as approved by the project Management Committee; and
b) The reimbursement of TCH costs for Technical Assistance from Bill Windsor (BW). Unless otherwise agreed to by all parties, BW hours will be limited to (a) tasks specifically requested by CU and MHA; and (b) attending management meetings; and (c) administration of loan funds. The reimbursement rate is $34.25 per hour. BW will log hours spent on the project and the log will commence upon execution of this document. Combined time for (b) and (c) will have a cap of 40 hours unless additional hours are specifically approved and requested by CU and MHA.
2nd to CU in the amount of its direct capital contribution to the project. The CU direct capital contribution will be limited to the outstanding balance of Grant(s) or Funding Account acquired or used by the University of Colorado used to improve the mobile home including both hard and soft costs as approved by the project Management Committee. This distribution will be in the form of a donation to the CYE Center at University of Colorado, or such other form as defined by CYE/CU and approved by the Project Management Committee.
3rd – Any remaining proceeds will be disbursed as follows:
a) 33.33% to CU
b) 33.33% to MHA
c) 33.33% to TCH - TCH agrees to reduce its share of this distribution by up to the total amount of the Technical Assistance reimbursement cost. This ‘hold-back’ amount will then be disbursed as follows:
i. 33.33% to CU
ii. 33.33% to MHA
iii. 33.33% to TCH
II. Terms and Conditions
A. Costs, Materials Purchase and Procurement. UCDHSC shall cooperate with the Project Management Committee in managing the purchase and procurement of necessary materials to fulfill the scope of work as set forth above. As of the date of this Agreement, TCH shall provide a total of sixteen thousand and 00/100 Dollars (16,000) for the fulfillment of the scope of work as set forth above. As of the date of this Agreement, the University shall provide an approximate total of fourteen thousand and 00/100 Dollars (14,000) in grant funding for the fulfillment of the scope of work as set forth above. All grant funding provided by the University will be used in accordance with conditions and stipulations defined by the relevant granting agency. The university will not be responsible for replacing grant funding lost due to unmet conditions and stipulations defined by the relevant granting agency.
The University will only contribute grant funding and will not assume any liability for financing the project beyond the amount grant funding acquired as of the date of this contract. Any costs in excess of thirty thousand and 00/100 Dollars shall require additional funding sources and the approval and authorization of the Project Management Committee.
B. Indemnification. In consideration for the services provided by the University, to the extent authorized by law, TCH and MHA hereby agree that it will indemnify and hold harmless the Regents of the University of Colorado, its employees, agents, officers and students from and against any and all liability, claims, or causes of action, including attorneys’ fees, which may arise from the performance of this agreement.
C. Legal Authority. CU, MHA and TCH each warrant and represent that they respectively possess the legal authority to enter into this contract and that they respectively have taken all actions required by its regulations, procedures, by-laws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement and to bind each Party to its terms. The person(s) executing this on behalf of CU, MHA and TCH warrant(s) that such person(s) have full authorization to execute this Contract.
D. Independent Contractor Relationship. The University shall perform its duties hereunder as an independent contractor and not as an employee. Neither the University nor any agent or employee of the University shall be deemed to be an agent or employee of MHA or TCH. The University shall pay when due all required employment taxes and income tax and local head tax on any monies paid pursuant to this contract.
E. Assignment and Successors. The CU, MHA and TCH agree to not assign rights or delegate duties under this contract, or subcontract any part of the performance required under the contract, without the express written consent of all Parties, which consent shall not be unreasonably withheld. Except as herein otherwise provided, this contract shall insure to the benefit of and be binding only upon the parties hereto and their respective successors and assigns.
F. Modification and Amendment. Except as provided above, no modification of this contract shall be effective unless agreed to in writing by both parties in an amendment to this contract that is properly executed and approved in accordance with applicable law.
G. Force Majeure. Neither MHA, TCH, nor the University shall be liable to the other for any delay in, or failure of performance of, any covenant or promise contained in the contract, nor shall any delay or failure constitute default or give rise to any liability for damages, if, and only to the extent that such delay or failure is caused by “force majeure”. As used in this Agreement, “force majeure” means fire, explosion, action of elements, strike, interruption of transportation, rationing, court action, illegality, unusually severe weather, or any other cause that is beyond the control of the party affected and which, by the exercises of reasonable diligence, could not have been prevented by the party affected.
H. Entire Understanding. This Agreement is intended as the complete integration of all understanding between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or affect whatsoever, unless made in writing and agreed to by both Parties. No subsequent notations, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in writing, executed and approved pursuant to the State Fiscal Rules.
I. Severability. To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, The term of this contract is severable and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof.
J. Termination for Cause. In consideration for their mutually provided services and to the extent authorized by law, CU, MHA and TCH hereby agree that each member of the Project Management Committee may terminate this contract for cause. A member of the Project Management Committee shall effect such termination by giving written notice of termination to the other members of the Project Management Committee and specifying the termination. In that event, all finished or unfinished documents data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the University under this contract shall, at the option of the University, become University property.
K. Americans with Disabilities Act (ADA). The Parties certify that no qualified individual with a disability shall, by any reason of such disability, be excluded from participation in, or denied the benefits of the service, programs, or activities performed by the Parties if reasonable accommodations can be made nor shall such individual be subjected to discrimination by the Parties.
L. Representatives and Notice. For the purpose of this contract, the individuals identified below are hereby-designated representatives of the respective parties. All notices required to be given by the parties hereunder shall be hand delivered or mailed to the individuals at the addresses set forth below. Either party may from time-to-time designate in writing new substitute representatives.
For the University:
___________________________
___________________________
___________________________
For MHA:
Jonathan Machen
___________________________
___________________________
For TCH:
Bill Windsor
1845 Folsom St., Boulder, CO 80302
303-443-0007 x121
M. Limits of Liability. In no event will the University be liable, in contract or tort, to MHA, TCH, or their subcontractors for special, indirect, incidental or consequential damages, resulting from the University’s performance or nonperformance of its obligations under the contract or the University’s suspension of services, including, but not limited to any damages of any kind resulting from cost overruns or project delays. MHA and TCH have the same limitations of Liability related to the University.
N. Disclaimer of Warranty. MHA AND TCH UNDERSTAND AND AGREE THAT THE SERVICES AND PRODUCT PROVIDED BY UCDHSC ARE PROVIDED “AS IS” AND MHA’s and TCH’s USE OF THE SERVICES AND PRODUCTS are AT their OWN RISK. UCDHSC EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED (WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE), WITH RESPECT TO THE SERVICE OR ANY COMPONENT THEREOF INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. MHA AND TCH understand and agree that UCDHSC shall no responsibility for third party services or products as it is MHA’s and TCH’s obligation to satisfy themselves as to such services and products.
O. Work Product Ownership. The University shall have all ownership rights in all materials, programs, procedures, etc., designed and/or developed by the University in the performance of this contract except for such materials and work in place that are a part of the construction improvements to the trailer on lot 81.
P. Insurance. TCH and MHA have property and liability insurance as is customary for the operation of a Mobile Home park. TCH and MHA may, at their option obtain an Owner’s Builder Risk or other such policy to provide additional coverage specific to this project. CU will obtain liability waivers in a format approved by CU, MHA and TCH from students and others working on the project. Student participating in an Internship will be covered by CU for worker’s comp and liability.
Q. Applicable Law. The Parties shall at all times during the execution of this Agreement, and any subsequent extensions, strictly adhere to, and comply with, all applicable Federal and State laws, and their implementing regulations, as they currently exist and may hereafter be amended, which are incorporated herein by this reference as terms and conditions of this Agreement. This agreement is to be interpreted in accordance with the laws of the State of Colorado.
R. Third Party Beneficiaries. It is expressly understood and agreed that the enforcement of the terms and conditions of this contract and all rights of action relation to such enforcement shall be strictly reserved to the University, MHA, and TCH. Nothing contained in this contract shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the University, MHA, and TCH that any such person or entity, other than the University, MHA or TCH receiving services or benefits under this contract shall be deemed an incidental beneficiary only.
S. Sovereign Immunity. It is expressly understood and agreed that the enforcement of the terms conditions of this contract shall not 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, Section 24-10-101, et seq., CRS, as now or hereafter amended. The parties understand and agree that liability of claims for injuries to persons or property arising out of negligence of the State of Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of Sections 24-10-101, et seq., CRS, as now or hereafter amended.
T. Waiver. The waiver of any breach of a term, provision, or requirement of this contract shall not be construed or deemed as waiver of any subsequent breach of such term, provision, or requirement or of any other term, provision, or requirement.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day first above written.
MHA The Regents of the University of Colorado,
(Address) a body corporate, for and on behalf of
THE UNIVERSITY OF COLORADO
AT DENVER AND HEALTH SCIENCES CENTER; COLLEGE OF
ARCHITECTURE AND PLANNING
By: By:
_____________________________ ______________________________
Signature Signature
_____________________________ ______________________________
Printed Name Printed Name
_____________________________ ______________________________
Title Title
_____________________________ ______________________________
Date Date
TCH
1845 Folsom St.
By:
_____________________________
Signature
Aaron Miripol__________________
Printed Name
Executive Director_______________
Title
_____________________________
Date
Copyright © 2001 Mapleton Home Association. All rights reserved.