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Home My WebLink AboutC01-246 Consultant Agreement with Convergent Groupj" Convergent Group Corporation v,dnsultant Agreement Eagle County CONSULTANT AGREEMENT BETWEEN EAGLE COUNTY AND CONVERGENT GROUP CORPORATION (Reference No.: CVG20010097S) This CONSULTANT AGREEMENT (hereinafter referred to as "Agreement ") is made and entered into effective as of this 4th day of September 2001, by and between County of Eagle, State of Colorado (hereinafter referred to as "Client ") and Convergent Group Corporation of 6399 S. Fiddler's Green Circle, Suite 600, Greenwood Village CO 80111 (hereinafter referred to as "Convergent Group "). In consideration of the covenants and agreements contained herein and other good and valuable consideration, the sufficiency of which is hereby mutually acknowledged, the parties hereto agree as follows: 1. STATEMENT OF SERVICES - SCOPE OF WORK Convergent Group agrees to perform the services described in the Work Orders executed by the parties, attached hereto and made a part hereof (the "Services "). Convergent Group shall be fully responsible for the professional quality and technical accuracy of the Services furnished under this Agreement. Convergent Group shall not be responsible for problems arising with the work product of the Services after delivery thereof to Client as a result of changes made thereto by Client, or third parties, changes in acceptance procedures or standards, or improvement in technology. 2. COMPENSATION FOR SERVICES RENDERED A. Labor Rates /Invoices. Based upon the labor hours expended for the Services authorized by each Work Order, all labor and expenses relating to the Services performed by Convergent Group shall be invoiced monthly in accordance with the Labor Rates set forth below: Labor Category Labor Rates Account Executive $335/Hr. Senior Program Manager $311 /Hr. Program Manager $247/Hr. Associate Program Manager $166/Hr. Executive Consultant $349/Hr. Senior Consultant $240 /Hr. Consultant $192/Hr. Associate Consultant $140 /Hr. Solutions Architect $351/Hr. Engineering Management $269/Hr. Associate Engineering Services Engineer $112/Hr. Engineering Services Engineer $157/Hr. Proprietary and Confidential Convergent Group /DB -1- Convergent Group Corporation �} nsultant Agreement Eagle County Senior Engineering Services Engineer $215/Hr. Senior Software Engineer $233/Hr. Software Engineer $196/Hr. Associate Software Engineer $145/Hr. Senior Conversion Manager $261/Hr. Conversion Manager $161/Hr. Senior DAT Technician $127/Hr. DAT Technician $108 /Hr. Systems Administrator $179/Hr. Administrative Support $91 /Hr. The above Labor Rates are valid through December 31, 2001 and may be adjusted each January thereafter. Convergent Group will provide Client written notice of any adjustments to the Labor Rates. B. Expenses. Expenses are not included in the Labor Rates and will be reimbursed to Convergent Group at cost plus a five percent (5 %) administrative fee. C. Taxes and Duties. Client shall be responsible for taxes, however designated, paid or payable by Convergent Group hereunder, exclusive of taxes upon the net income of Convergent Group. Client shall also be responsible for all applicable fees, tariffs, or duties relating to the Services provided hereunder. 3. PAYMENT Invoices shall be paid NET 30 days from date of invoice. In the event that an invoice remains unpaid for thirty (30) days after the date it is received by Client, Convergent Group shall charge Client interest at the rate of two percent (2 %) per month on the unpaid balance over thirty (30) days. 4. TERM; TERMINATION OF AGREEMENT A. Term. This Agreement shall commence on the effective date first set forth above and shall remain in full force and effect until the earlier of (a) expiration of one (1) year and (b) earlier termination, as provided herein. B. Default. If either party shall at any time commit any material breach of any covenant or obligation under this Agreement and (i) (with the exception of a breach of Section 7 for which there is no cure period) shall fail to cure such breach within ten (10) days of written notice of such breach or (ii) if such breach is not curable within ten (10) days of written notice, shall fail to diligently commence to cure it within ten (10) days of notice, the non - breaching party may at its option, and in addition to any other remedies to which it is entitled, terminate this Agreement by written notice. C. Insolvency. Except as may be prohibited by the U.S. bankruptcy laws, in the event of either party's insolvency or inability to pay debts as they become due, voluntary or involuntary bankruptcy proceedings by or against a party hereto, or appointment of a receiver or assignment for the benefit of creditors, the other party may terminate this Agreement by written notice. Proprietary and Confidential Convergent Group /D8 -2- Convergent rg Group CorporationLurnsultant Agreement Eagle County D. Costs. If this Agreement is terminated after Convergent Group has commenced any work, mobilization, or other off -site activities hereunder, Convergent Group will be compensated at the applicable Labor Rates for labor hours expended, expenses incurred, and materials purchased (or committed to be purchased) as of the date of termination plus any time reasonably required to demobilize Convergent Group's Services hereunder. 6. CONVERGENT GROUP EMPLOYEES Convergent Group personnel shall be and will remain at all times, during this Agreement, employees of Convergent Group. Client shall not be responsible for any payments due Convergent Group's employees on account of, or in connection with, this Agreement. 6. INTELLECTUAL PROPERTY A. MethodoloQy. Convergent Group has developed numerous proven proprietary materials that provide the methodologies for delivery of the Services. The use of these materials contributes to the cost - effectiveness of Convergent Group's Services. Client agrees that Convergent Group shall own all such products, materials, and methodologies and that Client shall have or obtain no rights in such proprietary products, materials, and methodologies except pursuant to a separate written agreement executed by the parties. Client understands that Convergent Group proprietary costs analysis and strategic planning models and facilities database models and designs or certain software products may be used under this Agreement and Client agrees not to exhibit, distribute, or otherwise disclose any such proprietary methods and materials to external or third parties without the prior approval in writing from Convergent Group. Convergent Group shall continue to market, distribute, make derivative works from, and sell similar work to other companies without further notice to nor consent from Client. Nothing in this Agreement shall restrict or prohibit Convergent Group's right to use concepts, techniques, and know - how used or developed in the course of performing these Services. B. Work Product. Convergent Group shall be the owner of copyright or other intellectual property rights in the work product of the Services. Convergent Group grants to Client a royalty -free license to reproduce and use, for Client's internal purposes only, any work product developed for Client related to this Agreement. Client agrees not to exhibit, distribute, or otherwise disclose any such work product, including without limitation, any proprietary methods or materials to external or third parties without the prior approval in writing from Convergent Group. C. Survival. This Section shall survive termination or expiration of this Agreement for any reason. 7. CONFIDENTIALITY OF INFORMATION A. Confidential Information. It is expected that pursuant to this Agreement one party may disclose to the other certain information which will be considered by the disclosing party to be confidential, proprietary, or trade secret information (hereinafter Proprietary and Confidential Convergent Group /DB -3- Convergent Group Corporatio ..onsultant Agreement C -,Jl Eagle County, referred to as "Confidential Information "). All such Confidential Information shall remain solely the property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with no less than a reasonable degree of care. Except to the extent required by this Agreement, the receiving party agrees not to duplicate in any manner the Confidential Information or to disclose it to any third party not having a need to know for the purposes of this Agreement. The receiving party further agrees not to use any Confidential Information for any purpose other than the implementation of this Agreement. The receiving party acknowledges and agrees that the disclosing party would be irreparably harmed if any of its Confidential Information were to be disclosed to third parties and further agrees that the disclosing party shall have the right to seek and obtain injunctive relief, without the necessity of posting a bond, cash, or otherwise, upon any violation of this section, in addition to any and all rights or remedies which may be available at law or in equity. Confidential Information does not include information which the receiving party can establish (i) was known to the receiving party prior to disclosure, (ii) is or becomes generally known or available to the public other than as a result of disclosure by receiving party, (iii) is disclosed to receiving party on a nonconfidential basis by a third party with no obligation of confidentiality to disclosing party, or (iv) is independently developed by receiving party without reference to Confidential Information. B. Return of Information. Upon termination or expiration of this Agreement for any reason, the receiving party shall return to the disclosing party any Confidential Information belonging to the disclosing party which is in the receiving party's possession, except that Convergent shall be entitled to retain a duplicate set of Deliverable Products created in connection with this Agreement. C. Survival. This Section shall survive termination or expiration of this Agreement for any reason. 8. EQUAL EMPLOYMENT In performing the Services hereunder, Convergent Group agrees to comply with all applicable local, state, and federal laws, regulations, and orders relating to fair and equal employment opportunity practices and policies. 9. NON - SOLICITATION OF CONVERGENT EMPLOYEES A. Restriction on Solicitation. Client agrees that it will not, during the term of this Agreement and for a period continuing for twenty -four (24) months after the expiration or termination of this Agreement, for any reason, directly or indirectly (i) solicit, influence, entice, or encourage any person who is then or had been within one (1) year of such action an employee of Convergent Group to cease his or her relationship with Convergent Group, or otherwise interfere with, disrupt, or attempt to disrupt any past, present, or prospective relationship, contractual or otherwise, between Convergent Group and any of its employees, nor (ii) hire or attempt to hire, whether as an employee, Convergent Group, or otherwise, any person who was employed by Convergent Group at any time during the term of this Agreement. B. Iniunctive Relief. Client acknowledges and agrees that the provisions of this Section 9 are essential to Convergent Group and are reasonable and necessary to protect Proprietary and Confidential Convergent Group /DB -4- Convergent Group Corporate onsultant Agreement Eagle County the legitimate interests of Convergent Group and that the damages sustained by Convergent Group as a result of a breach of the agreements contained herein will subject Convergent Group to immediate, irreparable harm and damage, the amount of which, although substantial, could not be reasonably ascertainable, and that recovery of damages at law will not be an adequate remedy. Therefore, Client agrees that Convergent Group, in addition to any other remedy it may have under this Agreement or at law, shall be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this section. Client waives any right to the posting of a bond in the event of an issuance of a temporary restraining order, preliminary injunction, or permanent injunction upon the issuance of said order by a court of competent jurisdiction. C. Survival. This Section shall survive termination or expiration of this Agreement for any reason. 10. SPECIAL CONDITIONS The following conditions are incorporated into the understandings associated with this Agreement: (a) Client and Convergent Group reserve the right to subsequently amend this Agreement to include additional services or associated products. Compensation for additional services or products will be as agreed by Client and Convergent Group and may be incorporated as Addenda to this Agreement. All work to be accomplished will be defined in written Change Orders approved by the parties. The Change Orders will define the objectives to be addressed, the scope of services to be provided, the products to be delivered, the schedule to be met, special considerations (as appropriate), and a Change Order budget, estimate, or fixed fee. Convergent Group will be reimbursed as provided in the Change Order. (b) Convergent Group's project team members will have the opportunity and authority to contact personnel at Client directly in the performance of technical consulting duties. 11. NOTICES All correspondence, contracts, and communications between the parties to this Agreement should be made to the following: CLIENT: John Staight Eagle County GIS Department 500 Broadway Eagle, Colorado 81631 Telephone: (970) 328 -3553 Facsimile: (970) 328 -7185 Proprietary and Confidential Convergent Group /DB -5- Convergent Group Corporati ..onsultant Agreement Eagle County CONVERGENT GROUP: Stewart H. Cooper Convergent Group Corporation 6399 S. Fiddler's Green Circle, Suite 600 Greenwood Village, CO 80111 Telephone: (303) 741 -8400 Facsimile: (303) 741 -8401 All notices required or permitted hereunder shall be sufficient if given in writing and if delivered personally, by overnight courier, or by certified mail, return receipt to Convergent Group or Client, as the case may be, at the addresses set forth above or at such other address as such party shall have designated in the manner provided in this Section. Notice shall be deemed given on the date of receipt, in the case of F.arsonal delivery, or on the delivery or refusal date, as specified on the return receipt, in the case of overnight courier or certified mail. 12. INSURANCE During the term of this Agreement, Convergent Group shall provide and maintain at its own expense the following kinds of insurance with limits of liability as set forth below: Workman's Compensation Statutory Commercial General Liability $2,000,000 Automobile Liability $1,000,000 Excess Liability $10,000,000 Upon request, Convergent Group shall provide Client with a certificate of insurance evidencing the coverages required above and stating the policy numbers and inception and expiration dates of all policies. This certificate of insurance shall also provide for thirty (30) days' prior notice to the Client in the event of cancellation of the policy. 13. INDEMNITY Each party shall indemnify, hold harmless, and defend the other from and against all liabilities for bodily injury and property damage caused by the willful or negligent act or omission of the indemnifying party or its agents or employees. This Section shall survive termination or expiration of this Agreement for any reason. 14. WARRANTY AND LIMIT OF LIABILITY A. Warranty. Convergent Group warrants that its agents, employees, and subcontractors will exercise the degree of skill and performance normally exercised by duly qualified persons performing similar functions and in performing the Services. B. Disclaimer. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT BY WAY OF LIMITATION, ANY IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY OR Proprietary and Confidential Convergent Group /DB -6- Convergent Group Corporafi onsultant Agreement C � Eagle County FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE ABOVE WARRANTIES APPLY ONLY WITH RESPECT TO THE SERVICES PROVIDED BY CONVERGENT PURSUANT TO THIS AGREEMENT. C. Limit of Liability. Convergent Group's liability under this Agreement shall be limited to claims directly attributable only to the failure of Convergent Group's agents or employees to exercise the degree of skill and performance normally exercised by duly qualified persons performing similar functions. The amount of Convergent Group's liability shall not exceed the total amount of fees for Services rendered under this Agreement. IN NO EVENT SHALL CONVERGENT GROUP, ITS EMPLOYEES, OR AGENTS BE LIABLE FOR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES; LOSS OF EARNINGS, PROFITS OR INTEREST; JUDGMENTS, AWARDS OR CONTRIBUTION THERETO OR ANY OTHER SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE, HOWEVER CAUSED. 15. INDEPENDENT CONTRACTOR STATUS The parties to this Agreement are independent contractors, and none of the provisions of this Agreement shall be interpreted or deemed to create any relationship between such parties other than that of independent contractors. Nothing contained in this Agreement shall be construed to create a relationship of employer and employees, master and servant, principal and agent, or coventurers between Client and Convergent Group, between Client and any employee of Convergent Group, or between Convergent Group and any employee of Client. Client shall have no right to control or direct the details, manner, or means by which Convergent Group performs the Services hereunder. In performing such Services, Convergent Group shall have no control over or management authority with respect to Client or its operations. 16. DELAYS Any loss, damage, or delay in, or failure of performance by Convergent Group shall not constitute a default hereunder, be a ground for termination of this Agreement, or give rise to any claims for damage against Convergent Group if such loss, damage, delay, or failure is attributable in whole or in part to any cause beyond the reasonable control of Convergent Group. These causes include, but are not limited to, acts or omissions of Client causing delay, acts of God or the public enemy, compliance with any order, decree, or request of any governmental authority, fires, floods, explosions, accidents, riots, strikes, labor difficulties, or other concerted acts of workmen, or any other cause not within the reasonable control of Convergent Group. In the event of the occurrence of any such delay, the time for the performance by Convergent Group of the Services shall be extended for a period of time equivalent to the time reasonably attributable to such delay. 17. ALTERNATIVE DISPUTE RESOLUTION Any and all disputes arising out of or in connection with the execution, interpretation, performance, or nonperformance of this Agreement (not including any request for injunctive relief) or any other certificate, agreement, or other instrument between, involving, or Proprietary and Confidential Convergent Group /DB -7- Convergent Group Corporabo iuonsultant Agreement Eagle County affecting the parties (including the validity, scope, and enforceability of this arbitratior provision) shall be solely and finally settled by a single arbitrator in accordance with the Commercial Rules of the American Arbitration Association; provided, however, that in the event of conflict between such Rules and the terms of this Agreement, the terms of this Agreement shall govern. The arbitrator shall be an individual with experience in the areas of information technology or computer software licensing, implementation or installation. The place of arbitration shall be Denver, Colorado. The parties agree that arbitrator's decision is final and that no party may take any action, judicial or administrative, to overturn this decision. Any judgment rendered by the arbitrator may be entered in any court having jurisdiction thereof. Convergent Group shall carry on and be paid for the Services not in dispute and maintain the schedule for Services during any arbitration or litigation proceedings, unless otherwise agreed by Convergent Group and Client in writing. 18. MISCELLANEOUS A. Governing Law. This Agreement will be governed by the laws of the State of Colorado, US, without regard to the conflicts of laws principles of such state. B. Enforcement Expenses. In the event of a breach or threatened breach of any term or provision of this Agreement, the nonbreaching party shall be entitled to all of its remedies available at law or in equity and in addition shall be entitled to be reimbursed for all of its costs and expenses in enforcing this Agreement including, but not limited to, reasonable attorneys' fees. This Section shall survive termination or expiration of this Agreement for any reason. C. Captions and Headings The captions and headings herein are for convenience only and in no way shall be used in the interpretation or construction of this Agreement. D. Waiver of Compliance. Any failure by any party hereto to enforce at any time any term or condition of this Agreement shall not be considered a waiver of that party's right to later enforce each and every term and condition hereof. E. Assignment and Binding Effect This Agreement may not be assigned by either party hereto without the prior written consent of the other party. This Agreement shall be binding upon and inure to the benefit of each of the parties and its respective successors and permitted assigns. F. Severability. If any provision of this Agreement or the application thereof to any party or circumstance shall be declared invalid, illegal, or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use their best efforts to replace the invalid or unenforceable provision with a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision. G. Curren v. All monetary references in this Agreement are references to United States currency. Proprietary and Confidential Convergent Group /DB -8- Convergent Group Corporation „sultant Agreement C, Eagle County H. Entire Agreement. This Agreement and the Attachments hereto constitute the entire agreement between the parties and shall supersede all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. If Client issues a purchase order, memorandum, or other instruments covering the goods or Services provided under this Agreement, it is agreed that such document is for Client's internal purposes only unless it is accepted in writing by Convergent Group, in which case all terms and conditions contained therein which are additional to or inconsistent with this Agreement shall be of no force and effect. This Agreement shall not be varied other than by an instrument in writing of subsequent date hereto, executed by the duly authorized representatives of both parties. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first set forth above. County of Eagle, State of Colorado, By and Through Its BOARD OF COL By: am Title: Chairman Title: Sr. V.P., Client Services Proprietary and Confidential Convergent Group /DB -9- Convergent Group Corporation nsultant Agreement Eagle County WORK ORDER NO. 1 This Work Order No. 1, dated effective September 4, 2001, is attached to and made a part of the Consultant Agreement, dated September 4, 2001, between Convergent Group Corporation and County of Eagle, State of Colorado. SERVICES TO BE PERFORMED: Convergent Group shall perform the following Services: Exhibit A of this Work Order No. 1, Scope of Work, describes the services to be performed and products to be delivered by Convergent Group. TERM: The term of this Work Order shall commence upon the effective date set forth above and shall continue for a period of sixty (60) days thereafter. COMPENSATION AND AUTHORIZATION: Convergent Group will be compensated on a time and materials basis at Labor Rates set forth in the Consultant Agreement, plus expenses. The estimated labor cost to perform the Services described above is $18,000, not including expenses. Convergent Group will obtain written authorization from Client prior to exceeding said estimated amount. This is not a fixed price Work Order. PAYMENT TERMS: Convergent Group shall invoice Client in accordance with the Consultant Agreement. INVOICE PREPARATION: On each invoice, Convergent Group shall provide the following information: • Agreement Number or Purchase Order Number • Date of Invoice • Number of Invoice (in sequential order) • Billing Period • Description of Services Provided • Hours Expended • Any Authorized Expenses (with receipts), if applicable • Total Cost per Project Convergent Group shall submit one (1) invoice to the following address: John Staight Eagle County GIS Department 500 Broadway Eagle, Colorado 81631 Proprietary and Confidential Convergent Group /DB -10- Convergent Group Corporation sultant Agreement Eagle County TERMS: Invoices shall be paid NET 30 days from date of invoice receipt Proprietary and Confidential Convergent Group /DB EXHIBIT A —SCOPE OF WORK Scope of Work Project Planning and Technical Consulting Management * Project Planning and Management 1.1 Provide Project Management 1.1 Provide Project Management Convergent Group will provide project oversight, communicate with the County Project Manager, and coordinate the teams involved with the tasks described in this scope of work. The County will be responsible for project coordination and administration activities, including scheduling project meetings, processing invoices, following up on open issues, and managing County resources. Deliverable Products for Task 1 ■ Project management in support of technical consulting tasks Eagle County Proprietary and Confidential Convergent Group CO,�1VERGENT I.iROUP a U1 A -1 TASK A -2 __ C EXHIBIT A —SCOPE OF WORK Technical Consulting 2.1 Onsite Visits 2.2 System Analysis In this task, Convergent Group will support the Eagle County GIS Department as they move the GIS into "production ". 2.1 Onsite Visits Convergent Group will provide 2 one -day onsite trips to Eagle for the following project initiatives: On a one -day onsite trip to Eagle County, Convergent Group will deliver custom application software bug fixes, enhancements, and documentation (Summary of Bug Fixes and Addendums to the Thematic Mapping FRS, Browser/AIMS FRS, and ArcView Application Technical Documentation). Convergent Group will load the custom application software and ensure operability on the Eagle County system. Convergent Group will also provide training to the Eagle County GIS staff on the operation of the applications. Convergent Group will provide a one -day onsite training session for the GIS Editor. Training will include an overview of Editor capabilities and "live" editing of Assessor Department data. The intention is to provide training on the use of the GIS Editor for all varieties of data maintenance (e.g., adding new subdivisions, splitting parcels, combining parcels, etc.). 2.2 System Analysis Convergent Group will send one system administrator, an expert on GIS system operation, to Eagle County for one day of analysis. Addressing reports that the system is running slow will be the primary focus of the visit but a general analysis of the system will be conducted. Convergent Group will provide a document at the conclusion of the visit documenting analysis results and recommendations for bettering performance. Convergent Group Eagle County Proprietary and Confidential Deliverable Products for Task 2 • One day of onsite system analysis • System analysis document Eagle - .County Proprietary and Confidential EXHIBIT A —SCOPE OF WORK J Convergent Group CONVERGENT CJROUP A -3