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HomeMy WebLinkAboutC05-230 McMahan and Associates AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE COUNTY OF EAGLE, STATE OF COLORADO AND MCMAHAN AND ASSOCIATES, L.L.C. This Agreement Regarding Provision of Professional Services ("Agreement") dated this day of August, 2005, is between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners ("County") and McMahan and Associates, L.L.C., a Colorado limited liability company ("Contractor"). Recitals A. County desires professional certifIed public accounting services to provide the Services outlined in Section 1 hereunder with regards to the Miller Ranch housing project. B. Contractor has submitted to County a proposal for performing the Services (defIned in Section I hereunder) and represented that it has the expertise and personnel necessary to properly and timely perform the Services. C. Contractor and County intend by this Agreement to set forth the scope of the responsibilities ofthe Contractor in connection with the Services and related terms and conditions to govern the relationship between the Contractor and County in connection with the Services. Agreement Therefore, based upon the representations by the Contractor set forth in the foregoing recitals, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: 1. Scope ofthe Services: The Services shall be comprised of the following: a. Contractor shall provide the Scope of Services as more particularly described in Exhibit "A" attached hereto and incorporated by reference ("Services"). b. Contractor shall be responsible for the completeness and accuracy of the Services, including all supporting data and other documents prepared or compiled in performance ofthe Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that County has accepted or approved the Professional Services shall not relieve Contractor of any of its responsibilities. Contractor shall perform the Services in a skillful, professional and competent manner and in accordance with the highest standards of care, skill and diligence. 1 c. The parties hereto recognize that the scope of the Services may change. When the Contractor believes that the scope of the Services has been changed or that by reason of a decision of County it win be required to redo properly completed Services, Contractor shall immediately advise County of such belief and shan also provide a statement of the maximum additional charges for such services. Contractor shall not be entitled to be paid for any such additional services unless and until County agrees in writing that the Scope of the Services has changed and accepts the statement of the maximum additional charges. d. Additional services, if required beyond the Scope of Services, shall be separately negotiated and agreed to by both County and Contractor prior to the Contractor performing the additional services. 2. Time of Performance and Termination: a. This Agreement shall commence upon execution ofthis Agreement, subject to the provisions of Subsection 2(b) hereof, shall continue in full force and effect until earlier terminated as provided for herein. b. Either party may, in its sole discretion, terminate this Agreement, with or without cause, upon ten (10) days written notice to the other party. In the event of any termination of this Agreement, Contractor shall be compensated for Services satisfactorily completed prior to said notice. 3. Compensation and Payment: a. In consideration of Contractor's performance ofthe Scope of Services, Contractor shall be reimbursed based on the actual time spent at Contractor's standard hourly rates, plus travel and other out-of-pocket costs such as report production, typing, and postage as set forth in Exhibit "A." Based on the Contractor's proposal, the parties agree that reimbursement for the Scope of Services shall not exceed an amount of$25,000 unless agreed upon in writing by County. b. Contractor shall submit to County monthly invoices upon the progressive completion of the Services. Such invoices shall describe the Services performed, hours incurred, and an itemized breakdown of other expenses such as travel and out-of-pocket costs. Upon request, Contractor shall provide County with such other supporting information as County may request. Upon receipt of a proper invoice, County shall pay all proper charges within thirty (30) days of receipt of invoice. c. Contractor shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following fmal payment hereunder, which period shan be extended at County's reasonable request. 4. 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. Contractor shall be, and shall perform as, an independent Contractor. 2 No agent, subcontractor, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of County. Contractor shall be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, and servants during the performance of this Agreement. Contractor shall maintain liability, unemployment and workmen's compensation insurance on Contractor's behalf: as necessary. 5. Personnel: Contractor understands and hereby acknowledges that County is relying primarily upon the expertise and abilities of Michael Jenkins and McMahan and Associates, L.L.C. Contractor may not assign, subcontract or delegate any part of the Services or substitute subcontractors without County's written consent, which consent County may exercise in its sole discretion. 6. Confidentiality: Contractor acknowledges that during the term of this Agreement, Contractor may receive confIdential information from County for use in connection with its performance of the Services. Contractor further acknowledges that it may in the performance of the Services develop information, including facts, data, and opinions, which are, or in County's judgment should be, confidential or limited in terms of dissemination. Contractor shall take all precautions necessary to maintain and protect the confidentiality of any such information and to ensure that it shall be used only for the purposes ofthe Services. All facts, data, and opinions developed by Contractor in the course of its performance of the Services shan be deemed to belong to County and no such facts, data, or opinions shall be disseminated to anyone for any purpose without County's express written consent. Contractor shall retain all knowledge and information which it has acquired as a result of this Agreement in trust in a fiduciary capacity for the sole benefIt of County, its successors and assigns. Copies of all documents (including electronic files) which are obtained during or prepared in the performance ofthis Agreement shall be delivered to County before final payment is made to Contractor or upon earlier termination ofthis Agreement. 7. Indemnification: Within the limits allowed by law, Contractor shall indemnify, hold harmless and defend 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 Contractor in the performance ofthis Agreement. 8. Notices: Any notice and aU written communications required under this Agreement shall be given by personal delivery, courier delivery, facsimile transmission together with a "hard copy" by United States mail, or first class mail, to the appropriate party at the following addresses: Contractor: McMahan and Associates, L.L.C. Suite 222, Avon Center 100 West Beaver Creek Blvd. P.O. Box 5850 Avon, Colorado 8 I 620 Phone: 970-845-8800 3 Fax: 970-845-0851 County: Eagle County Attorney's Office 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Phone: 970-328-8685 Fax: 970-328-8699 Notice shall be deemed given on the first to occur of delivery, transmission by facsimile (if transmitted during customary business hours, or the following business day ifnot), or three (3) calendar days after deposit in the mails, as applicable. 9. Miscellaneous: a. Contractor 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, age, political affiliation, or family responsibility. 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, including Exhibit "A," 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 of, deletion from or addition to the Scope of Services, except by a written document of equal formality executed by both parties hereto. c. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction ofthe courts thereof The parties agree that venue in any action to enforce or interpret this Agreement shall be in the District Court in the Fifth District for the State of Colorado. If any action is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to reasonable costs and attorney fees. d. 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. e. The funds appropriated for this project are equal to or in excess of the contract amount. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement, nor shall any payment be made to Contractor in respect of any period after any December 3 I of each calendar year during the term of this Agreement, without an appropriation therefor by County in accordance with a budget 4 adopted by the Board of Eagle County Commissioners in compliance with applicable provisions of law. 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 Board of County Commission~rs . I~~c:::~:;;~?:", Dr: i) ~" ,', ,",^",! -' "% Teak: J. Simonton, Clerk to the Board of County Commissioners M,9fItIt ~ ASSOCIATES, L.L.C. / I ! f I ~// if i '",,"- / d i / il,! I j _ / 1/I/ITc~~ I~ I~~ II. IC. I JeDkins STATE OF COLORADO ) ~/ \ '-. ---~_/- ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of August, 2005, by Michael Jenkins as !~~.j.f'\l!t~"!\l ~J.f~,..tJ:,f!/ of McMahan and Associates, L.L.C. ..j----~ Witness my hand and official My commission expires: Notary Public 5 - EXIDBIT A- iI" McMAHAN AND ( 5S0CIATES, L.L.C. Certified Public Accountants and Consultants WEB SITE: WWW.MCMAHANCPA.COM SUITE 222jAVON CENTER TELEPHONE: (970) 845-8800 100 WEST BEAVER CREEK BLVD. FACSIMILE: (970) 845-0851 P.O. Box 5850 AVON, CO 81620 E-MAIL: MCMAHAN@MCMAHANCPA.COM July 25, 2005 Eagle County Government 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Attention: Diane Mauriello, County Attorney Dear Diane: We are pleased to confirm our understanding of the nature and limitations of the services we are to provide for Eagle County Government (the "County") with respect to the County's involvement in the Miller Ranch housing project (the "Project"), pursuant to the Development Agreement between the County and Berry Creek Limited Liability Co. ("BC LLC"). We will apply the agreed-upon procedures, which you have specified and as listed in the attached Schedule A, to BC LLC's schedules calculating the County's Equity Share, as defined in the Development Agreement. This engagement is solely to assist the County in ensuring BC LLC's compliance with the terms of the Development Agreement, and to aid the County in estimating its Equity Share earned from the Project. Our engagement to apply agreed-upon procedures will be performed in accordance with attestation standards established by the American Institute of Certified Public Accountants. The sufficiency of the procedures is solely the County's responsibility, as the specified user of the report. Consequently, we make no representation regarding the sufficiency of the procedures described on the attached schedule, either for the purpose for which this report has been requested or for any other purpose. If, for any reason, we are unable to complete the procedures, we will describe any restrictions on the performance of the procedures in our report, or will not issue a report as a result of this engagement. Because the agreed-upon procedures listed on the attached schedule do not constitute an examination, we will not express an opinion on either BC LLC's compliance with the Development Agreement, or the estimates of the County's Equity Share earned from the Project. In addition, we have no obligation to perform any procedures beyond those listed on the attached schedule. We will submit a report listing the procedures performed and our findings. These reports are intended solely for the use of the County, and should not be used by those who did not agree to the procedures and take responsibility for the sufficiency of the procedures for their purposes. Our reports will contain a paragraph indicating that, had we performed additional procedures, other matters might have come to our attention that would have been reported to the County. Perfonning services throughout Colorado D. Jerry McMahan. CPA Daniel R. Cudahy, CPA. Paul J. Backes, CPA Michael N. Jenkins, C.A., CP.A. Members: American Institute of Certified Public Accountants/Colorado Society of Certified Public Accountants Eagle County Government Attention: Diane Mauriello, County Attorney RE: Miller Ranch Housing Project July 25, 2005 Page 2 Our fees for such services will be based on the actual time spent at our standard hourly rates, plus travel and other out-of-pocket costs such as report production, typing, postage, etc. Standard hourly rates for staff vary with the degree of responsibility assigned and experience. Based on our preliminary estimates, we anticipate that the total fee for this engagement will range from $20,000 to $25,000. Our fee estimate is based on anticipated cooperation from County and BC LLC personnel, and the assumption that unexpected circumstances will not be encountered during the engagement. If significant additional time is necessary, we will discuss it with you and arrive at a new fee estimate before we incur the additional costs. Billings will be rendered each month as work progresses and are payable upon presentation. While it is our expectation that we will be provided with the schedules and related infonnation necessary to apply the procedures enumerated on Schedule A, we understand that all such documents are held by Be LLC. Consequently, we understand that you may request that we perfonn alternative procedures which are not listed on Schedule A of this letter. If this occurs, we will communicate with you regarding the scope of those services and the related fee. In the absence of any other written communication from us documenting additional or alternative agreed-upon services, our services will continue to be governed by the tenns of this engagement letter. We appreciate the opportunity to be of service to Eagle County and believe this letter accurately summarizes the significant tenns of our engagement. If you are in agreement with the tenns presented in this letter, please sign and return the enclosed copy to our office. Yours very truly, McMAHAN and ASSOCIATES, L.L.C. This letter correctly sets forth the understanding of Eagle County with respect to the services to be perfonned by McMahan and Associates, L.L.C. EAGLE COUNTY GOVERNMENT BY: Title: Date: - SCHEDULE A - AGREED-UPON PROCEDURES to be performed by MCMAHAN and ASSOCIATES, L.L.C. for EAGLE COUNTY GOVERNMENT re: MILLER RANCH HOUSING PROJECT PROCEDURES TO BE PERFORMED: 1) From a detailed schedule of unit closings for Phase I of the Project, 25 unit closings will be randomly selected. For each of the selected 25 units, we will vouch the details of the calculation of the County's Equity Share to the closing statements and other appropriate supporting documents, as provided in the Development Agreement. 2) From a schedule detailing all unit closings (completed and projected) since Phase I, together with a calculation of the County's Equity Share attributable to Phase II and completion of the Project, we selectively verify significant items to appropriate supporting documentation and document the relationship of BC LLC's assumptions to actual outcomes in Phase I of the Project. NOTE: It is assumed that we will be given reasonable and timely access to relevant individuals and documents (including schedules of Phase I closings and Equity Share projections) for the requested time frame by BC LLC and the County, as applicable.