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HomeMy WebLinkAboutC04-249 Peter Bergh “Landscape Architect”Goy~y7 -M7 AGREEMENT REGARDING PROVISION OF PROFESSIONAL SERVICES FOR Landscape Architectural Design BERRY CREEK RECREATION SITE This Agreement Regarding Provision of Professional Services for landscape architecture service for Tract C, Berry Creek 5th Filing, Edwards, CO. "Agreement" dated as of 3 _, 2004, is between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners "County", and Peter Bergh "Landscape Architect". A. Eagle County desires landscape architectural design services for the Recreation Site at Tract C at Berry Creek/Miller Ranch in Edwards, Colorado. B. Peter Bergh is a Landscape Architect authorized to act as such in the State of Colorado, whose expertise is in Landscape Architecture and who is a professional Landscape Architect authorized to act as such in the State of Colorado. C. Peter Bergh has submitted to County a proposal for performing the Services (defined below), such proposal attached hereto as Exhibit "A" and incorporated herein by reference, and represented that it has the expertise and personnel necessary to properly and timely perform the Services. To the extent that any provision in this Agreement conflicts with a term or condition of the proposal, this Agreement shall control. D. The Landscape Architect and County intend by this Agreement to set forth the Scope of the responsibilities of the Landscape Architect in connection with the Work and related terms and conditions to govern the relationship between the Landscape Architect and County in connection with the Work. AGREEMENT Therefore, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: Scope of the Work: The Landscape Architect's Work consists of those services performed by the Landscape Architect, Landscape Architect' s Employees and Landscape Architect's sub- consultants. The Landscape Architect shall provide all labor, materials and equipment necessary to perform and complete the work described herein and as follows (Work): The Landscape Architect shall prepare design services to complete construction ready documents based upon the schematic phase documents completed under this contract. The Landscape Architect shall design drainage improvements for the skatepark facility and as further described in, and according to the schedule contained in, the Landscape Architect' s proposal attached as Exhibit "A" to the agreement. The Landscape Architect shall prepare bidding phase and construction phase services as required by the County. Nothing herein is intended to or constitutes a representation by County that it will construct the proposed improvements or that it will do so at a particular time. 1 G:\CPROJECT\Cd-berrycreek5th\Skate Park\Peter Bergh- architectural design agreement-BC Skate Park-7-7-04.DOC The Parties hereto recognize that the scope of the Work may change. When the Landscape Architect believes that the scope of the Work has been changed or that by reason of a decision of County it will be required to redo properly completed Work, the Landscape Architect shall immediately advise County of such belief and shall also provide a statement of the maximum additional charges for such work. The Landscape Architect shall not be entitled to be paid for any such additional work unless and until County agrees in writing that the scope of the Work has changed and accepts the statement of the maximum additional charges. Landscape Architect shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the Services, and the general and local conditions which can affect the Services or the cost thereof. Any failure by Landscape Architect to do so will not relieve him from responsibility for successfully performing the Services without additional expense to the County. 2. Landscape Architect' s Professional Level of Care: The Landscape Architect shall be responsible for the completeness and accuracy of the Work, including all supporting data and other documents prepared or compiled in performance of the Work, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved the Landscape Architect' s work shall not relieve the Landscape Architect of any of its responsibilities. The Landscape Architect and its professional consultants shall perform the Work in a skillful, professional and competent manner and in accordance with the prevailing standard of care, skill and diligence applicable to Landscape Architects, sub-consultants, as the case may be, with respect to similar work. 3. Time of Performance and Termination: a) The Landscape Architect shall commence the Work five (5) business days after the execution of this Agreement. The Landscape Architect shall complete the individual tasks of the Work in conformity with the completion dates set forth in Exhibit "A", provided that completion dates for any one or more of the tasks identified in the Proposed Schedule may be extended by the County at its sole discretion. b) County may terminate this Agreement, in whole or in part, for its convenience upon providing notice to the Landscape Architect. Upon such a termination, County shall be liable only for Work satisfactorily completed prior to the notice and for unavoidable expenses directly incurred for performance of those parts of the Work which have not been satisfactorily completed, provided that, at its sole option, County may require that the Landscape Architect complete particular portions of the Work on a time and reimbursable expenses basis consistent with paragraph 4 hereof. Upon termination the Landscape Architect shall deliver to County all drawings, illustrations, text, data and other documents entirely or partially completed, together with all material supplied to Landscape Architect by County. Payment will be due within thirty (30) days after Landscape Architect has delivered the last of the partially completed documents, together with any records that may be required to determine the amount due. 2 G:\CPROJECT\Cd-berrycreekSth\Skate Park\Peter Bergh- architectural design agreement-BC Skate Park-7-7-04.DOC c) Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to County nor shall any payment be made to Landscape Architect for any Work done after December 31, 2004, without the written approval of the County in accordance with a budget adopted by the Board of County Commissioners in accordance with the provisions of Article 25 of Title 30 of the Colorado Revised Statues and the Local Government Budget Law (C.R.S 29-1-101 et seq.). Compensation and Payment: In consideration of its performance of the Work, the Landscape Architect shall be paid for professional time and reimbursable expenses actually and directly spent on or incurred in performing the Work at the rate of $125.00 per hour, provided that the total payment shall not exceed $25,000.00. Payment shall be made in accordance with the following: a) The Landscape Architect shall submit to County monthly invoices of the progress made and expenses incurred during the previous calendar month. Such invoices shall segregate the charges for work done by task as described in Exhibit A, and shall describe the Work performed, including the percentage of completion Contractor contends was accomplished during the month, and expenses incurred. Upon request, Landscape Architect shall provide County with such other supporting information as County may request. b) One Hundred percent (100%) of the professional fees and reimbursable expenses shall be due and payable within thirty (30) days after submittal by Landscape Architect together with submission of any required clarification and documentation. Interest at the rate of 1.5% per month (18% per annum) shall apply to over due amounts. c) For the purposes of this Agreement, the term "reimbursable costs" shall include only actual out-of-pocket expenses, plus 7.5%, incurred by Landscape Architect and his sub- consultants in connection with the Work. Reimbursable costs shall include local travel within Colorado, telephone, postal, or air freight charges. Reimbursable costs will include blueprint/plan printing (sufficient copies as directed by County for bid package preparation and distribution, County use, building inspection use, and the General Contractors use), fax and photo-reproduction costs. d) The Landscape Architect shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following final payment hereunder, which period shall be extended at County' s reasonable request. County shall have the right within such period to inspect such books, records and documents upon demand, with reasonable notice and at a reasonable time, for the purpose of determining, in accordance with acceptable accounting and auditing standards, compliance with the requirements of this Agreement and the law. The parties recognize that County is a governmental entity and that all financial obligations beyond the current fiscal year are subject to funds being budgeted and appropriated. Project Mana eg ment: Peter Bergh shall be designated as Landscape Architect' s Project Manager for the Work. Eagle County Director of Facilities Management shall be County' s manager responsible for this Agreement. All correspondence between the parties hereto regarding this project shall be between and among the project managers with copies of all correspondence delivered to the Client Representative. Either party may designate a different project manager by notice in writing. 3 G:\CPROJECT\Cd-berrycreek5t6\Skate Park\Peter Bergh- architectural design agreement-BC Skate Park-7-7-04.DOC 6. Independent Contractor: It is expressly acknowledged and understood by the parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship. Landscape Architect shall be, and shall perform as, an independent contractor. No agent, subcontractor, employee, or servant of Landscape Architect shall be, or shall be deemed to be, the employee, agent or servant of County. The Landscape Architect shall be solely and entirely responsible for its acts and for the acts of Landscape Architect' s agents, employees, servants and subcontractors during the performance of this Agreement. Personnel: The Landscape Architect understands and hereby acknowledges that County is relying primarily upon the expertise and personal abilities of Peter Bergh. This Agreement is conditioned upon the continuing direct personal involvement of these persons in the Work. Contractor may not subcontract or delegate any part of the Work or substitute subcontractors without County's written consent, which consent County may exercise in its sole discretion. The final plans to be provided by Contractor shall be completely reviewed by Peter Bergh. In the event that Landscape Architect and the identified subcontractor are unable to remain involved in the Work, Contractor shall immediately notify County and County shall have the option to terminate this Agreement. 8. Ownership of Documents: All documents (including electronic files) which are obtained during or prepared, partially or wholly, in the performance of the Services are instruments of professional service. Nevertheless, the plans and specifications prepared under this Agreement shall be delivered to County upon completion of the Work or termination of this Agreement, and, in any event, before final payment of moneys due to Peter Bergh and shall at all times be deemed the property of the County, whether or not the Work under this Agreement is completed. 9. No Assi nment: The parties to the Agreement recognize that the services to be provided pursuant to this Agreement are professional in nature and that in entering into the Agreement County is relying upon the personal services and reputation of Peter Bergh. Therefore, neither Landscape Architect nor its subcontractors may assign its interest in the Agreement or in their subcontract, including the assignment of any rights or delegation of any obligations provided therein, without the prior written consent of County, which consent, County may withhold in its sole discretion. Except as so provided, this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective successors and assigns, and shall not be deemed to be for the benefit of or enforceable by any third party. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 10. Insurance: At all times during the term of this Agreement, Contractor shall maintain the following insurance: a) Type of Insurance b) Professional Liability c) Workers Compensation Coverage Limits $1,000,000 minimum As required by Colorado law 4 G:\CPROJECT\Cd-berrycreek5th\Skate Park\Peter Bergh- architectural design agreement-BC Skate Park-7-7-04.DOC d) All insurance required hereby shall be issued by an insurance company or companies authorized to do business in the State of Colorado. The Landscape Architect shall deliver certificates of required insurance to the County within fifteen (15) calendar days of execution of this Agreement by the Board. e) Before permitting any subcontractor to perform any work under this Agreement, Landscape Architect shall either (1) require each of his subcontractor to procure and maintain, during the life of his subcontracts, insurance which meets the requirements for the Contractor herein, or (2) provide for insurance of the subcontractor in Contractor's own policies in the amounts required herein above. 11. Indemnification: Landscape Architect, its agents, subcontractors or employees shall indemnify the County, and hold and defend the County and its officials, boards, officers, principals and employees, harmless from, all costs, claims and expenses, including reasonable attorney' s fees, arising from claims of any nature whatsoever made by any person in connection with the acts or omissions of, or representations by, the Landscape Architect in the performance of this Agreement. This indemnification shall not apply to claims by third parties against the County to the extent that the County is liable to such third party for such claim without regard to the involvement of the Landscape Architect. 12. Notices: Any notice and all written communications required under this Agreement shall be given in writing by personal delivery, FAX or mail to the appropriate party at the following addresses: a) Landscape Architect: Peter Bergh P.O. Box 1727 Edwards, Colorado 81632 Tel (970) 926-5146 Fax (970) 376-5927 b) County: Director of Facilities Management P.O. Box 850 Eagle, CO 81631 Tel (970) 328-8880 Fax (970) 32$-8899 c) Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depository of the U.S. Postal Service. 13. Miscellaneous: a) The Landscape Architect shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement on the basis of race, color, religion, national origin, sex, ancestry, physical handicap, sexual orientation, age, political affiliation or family responsibility. The Landscape Architect shall require all consultants to agree to the provisions of this subparagraph. 5 G:\CPROJECT\Cd-berrycreek5th\Skate Park\Peter Bergh- architectural design agreement-BC Skate Park-7-7-04.DOC b) The making, execution and delivery of this Agreement by the parties hereto has not been induced by any prior or contemporaneous representation, statement, warranty or agreement as to any matter other than those herein expressed. This Agreement embodies the entire understanding and agreement of the parties, and there are no further or other agreements or understandings, written or oral, in effect between them relating to the subject matter hereof. This Agreement may not be amended, including by any modification or, deletion from or addition to the scope of the Work, except by a written document of equal formality executed by both parties hereto. c) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado, without reference to choice of law rules. The parties agree that venue in any action to enforce or interpret this Agreement shall be in the District Court in the 5th District for the State of Colorado. c) This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. 6 G:\CPROJECT\Cd-berrycreek5th\Skate Park\Peter Bergh- architectural design agreement-BC Skate Park-7-7-04.DOC IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its o~~ac~~~' BOARD OF COUNTY COMMISSIONERS ~~ ATTEST: ~ ~ ;~ By: Clerk to the Board of Tom .Stone, hairman County Commissioners B '~ z' ~~ Y• !i Peter Ber Title: ~~,.~ (i . f STATE OF COLORADO ) )ss County of The foregoing was acknowledged before me this / ~ ~ day of , by My commission expires: 7 ~~~~ ~ Notary Public .` •. •o •.oy. `~ '~®Z ~- R 1- m~~s~~w~ ©r w o~ ` e~~ • O`ea ''~ ~ ~~'~'~997, ~ i t9 °V.el.SE4 7 G:\CPROJECT\Cd-berrycreek5th\Skate Park\Peter Bergh- architectural design agreement-BC Skate Park-7-7-04.DOC Peter Bergh P. O. Box 1727 Edwards, CO 81632 "Exhibit A" June 15, 2004 Eagle County Commissioners P.O. Box 850 Eagle, CO 81631 Re: Proposal for Continuing Consulting Services Dear Mike, Tom and Arn, The Planned Unit Development known as Berry Cheek continues to evolve in an attractive and orderly fashion, and several of the key elements along Miller Ranch Road are in various stages of construction or nearing completion. My work to date has focused on four areas of the project: 1) Planting and signage along Miller Ranch Road; 2) A campus plan for Colorado Mountain College; 3) Working to secure a permanent open space status and the design of a simple trail network for the 50 acre parcel at the east end of the development and; 4) the master planning of the 40 acre recreational parcel and related design details of the various components of this important community resource. As this project has unfolded, and in certain areas has expanded, competing uses for a finite amount of land have manifested themselves. Efforts are underway to create a large, state~of-the-art skateboard park and playground; a committee has been formed to plan, design and build a memorial of some kind to service personnel; a large daycare center is under design for this site; more off-street parking space is badly needed; additional spectator viewing areas, shade (trees), and additional separation of parking from the soccer fields is desirable; and a study is currently being conducted to determine the need and configuration of a large indoor community recreation center to be located between the soccer fields and the lake. With careful planning, coordination, and some adjustments, all these elements can be accommodated on this alts and can be made to work reasonably well together. However. as one element expands in scale or scope its impact on adjacent uses must be taken into consideration and accommodated. In addition, it would be wise at this juncture to set aside adequate land for the contemplated communityr center. Of immediate concern is the need to complete the design of the lake environment including stream and watertali details, an overall platrting plan, and allow for the design and building of the memorial park in whatever form and shape it may take. Another immediate concern is the design and relationship of the tot-lot playground and the skateboard park, their relative sizes, components and how they relate to each other and the adjacent activities. In this regard, and in order to facilitate the above, I propose to continue my design and consulting services to the County and to work closely with Mike and Rich in Facilities Management to ensure proper coordination and design of all the various -2- elements related to Freedom Park. My design fee is one-hundredfinreMy~ive dollars per hour (;126/hr)~ and I estimate that my services to the County in this regard will not exceed 200 hours of my time and further my entire fee would be included in the budgeted figure of 5226000 that Rich has.estabiished for the tot-lot playground alone. ff this proposal and arrangement meets with your approval kindly sign below and return one copy to me for my records. Thank you for the opportunity to be of service to Eagle County. Sin • y Pe r Bergh Proposal accepted by: Date